DAMAGES. I. Definitions, 165. A. In General, 165. B. Compensatory Damages, 165. C. Exemplary Damages, 165. ́ II. Damnum Absque Injuria, 165. III. Necessity of Resultant Damage, 167. A. In General, 167. B. Nominal Damages, 167. IV. Liquidated Damages and Penalties, 169. V. Speculative, Remote or Contingent Damagoз, 172. A. Proximate and Remote Consequence, 172 B. Uncertain, Speculative and Contingent Damages, 173. 1. In General, 173. 2. In Actions for Breach of Contract, 173. 3. In Actions for Torts, 173. 4. In Condemnation Proceedings, 175. C. Profits, 175. 1. In General, 175. 2. In Actions for Breach of Contract, 176. a. In General, 176. b. Specific Applications of Rule, 177. c. Profits to Be Realized on Subcontracts, 181. 3. In Actions for Tort, 182. VI. Elements and Measure of Recovery, 182. A. In General-Rule of Compensation, 182. B. In Actions for Breach of Contract, 183. 1. In General, 183. 2. Specific Contracts Considered, 184. 3. Where Performance Is Prevented, 186. 4. Expenditures Made Because of Breach of Contract, 186. C. In Actions for Tort, 186. 1. In General, 186. 2. Personal Injuries, 187. a. In General, 187. b. Loss of Time, 188. c. Continuance and Permanency of Injury, 183. d. Medical Expenses, 188. e. Impairment of Earning Capacity, 189. f. Physical Pain and Suffering, 190. 3. Injuries to Animals by Railroads, 191. 4. Negligent Injury to Real Property, 191. a. In General, 191. b. Fires, 191. 5. Unlawful or Wrongful Sale of Property, 192. 6. Actions against Carriers, 192. a. Carriers of Passengers-Ejection of Passengers, 192. b. Carriers of Goods, 194. c. Carriers of Live Stock, 194. 7. Injury to Business, 195. 8. Injury to Plaintiff's Character, 195. 10. Mental Anguish and Suffering, 196. b. Assault and Battery, 197. c. Death by Wrongful Act, 197. d. Libel and Slander, 198. e. Seduction, 199. f. Telegraphs and Telephones, 199. 11. Humiliation, Indignity and Insult, 200. 12. Interest as Damages, 201. VII. Excessive and Inadequate Damages, 202. A. As Ground for New Trial, 202. 1. Where Law Fixes Standard of Estimation, 202. 2. Where There Is No Legal Measure, 202. 3. Excessive Damages, 202. a. In General, 202. b. In Actions for Personal Injuries, 204. c. Submission of Controversy, 205. d. Death by Wrongful Act, 205. e. Arguments of Counsel, 205. f. Exceptions and Objections, 205. 4. Inadequate Damages, 205. B. Illustrative Verdicts, 206. C. Remittitur, 209. VIII. Aggravation and Mitigation of Damages, 209. A. Aggravation of Damages, 209. B. Mitigation of Damages, 210. C. Facts Occurring after Commencement of Suit, 212. IX. Pleading and Practice, 212. A. The Declaration, 212. 1. Necessity of Alleging Damage, 212. a. In General, 212. b. Cure by Verdict, 213. 2. General and Special Damage, 214. 3. Aggravation and Mitigation of Damages, 215. 4. Pleading by Way of Recital, 216. 5. Verdict in Excess of Amount Demanded, 216. a. In General, 216. b. In Debt upon Bond with Collateral Condition, 217. c. In Detinue, 217. d. In Actions of Covenant, 217. e. In Actions for Death, 218. f. Remittitur, 218. g. Cure by Verdict, 218. h. New Trials, 218. B. Plea of General Issue, 218. C. Actions, 219. 1. Splitting Causes of Action, 219. b. Breach of Contract, 219. c. Injury to Property, 220. (1) Where Injury Is Permanent, 220. (2) Where Injury Is Temporary, 221. 2. Motions, 222. D. Instructions, 222. 1. Where Evidence Is Conflicting, 222. X. Evidence, 222. A. Domestic Relations of Plaintiff, 222. B. Family Dependent on Plaintiff for Support, 223. CROSS REFERENCES. See the titles ABUTTING OWNERS, vol. 1, p. 60; ASSAULT AND BATTERY, vol. 1, p. 729; BONDS, vol. 2, p. 507; BREACH OF PROMISE OF MARRIAGE, vol. 2, p. 613; DEATH BY WRONGFUL ACT; DETINUE AND REPLEVIN; EJECTMENT; EMINENT DOMAIN; EXPERT AND OPINION EVIDENCE; FALSE IMPRISONMENT; FRAUD AND DECEIT; IMPROVEMENTS; INJUNCTIONS; JOINT TENANTS AND TENANTS IN COMMON; JURISDICTION; LANDLORD AND TENANT; LIFE INSURANCE; MALICIOUS PROSECUTION; MORTGAGES; NUISANCES; PUBLIC LANDS; PUBLIC OFFICERS; REMITTITUR; SALES; SHERIFFS AND CONSTABLES; TRESPASS; TROVER AND CONVERSION; VARIANCE; VERDICT; WASTE. As to measure of damages for breach of warranty in sale of land, see the title COVENANTS, vol. 3, p. 741. As to set-off of unliquidated damages, see the title SET-OFF, RECOUPMENT AND COUNTERCLAIM. As to action for damages in equity, see the titles ADEQUATE REMEDY AT LAW, vol. 1. p. 161; JURISDICTION. As to mitigation of damages in slander and libel, see the title LIBEL AND SLANDER. As to measure of damages for breach of warranty in sale of personal property, see the title WARRANTY. As to assessment of damages, see the titles INQUEST AND INQUIRIES; VERDICT. As to measure of damages in action on indemnifying bond, see' the title INDEMNITY. As to amount in controversy, see the titles APPEAL. AND ERROR, vol. 1, p. 477; JUSTICES OF THE PEACE. As to damages for wrongful eviction, see the title LANDLORD AND TENANT. As to damages for personal injuries on streets and highways, see the title STREETS AND HIGHWAYS. As to necessity for inquiry of damages, see the title INQUEST AND INQUIRIES. As to measure of damage in action on prisons bounds bond, see PRISONS AND PRISONERS. As to measure of damages for failure to give possession of leased premises, see the title LANDLORD AND TENANT. As to damages in appellate court, see the title APPEAL AND ERROR, vol. 1, p. 627. I. Definitions. A. IN GENERAL. 26 S. E. 354, cited and approved in Richmond v. Henderson, 48 W. Va. 389, 37 S. E. 653. A number of definitions have been This is an action brought before a given of the word "damages." Thus justice of the peace, and, as held in Blackstone defines it: "The money O'Connor v. Dils, 43 W. Va. 54, 26 S. given to a man by a jury as a compen- E. 354 (Syl., point 1), "common-law sation for some injury sustained." 2 forms of action, in so far as justice's Bl. Comm. 438. The Civil Code of trials are concerned, are entirely abolCalifornia of 1874 thus defines it: ished by § 49, ch. 50, Code;" and sylla"Every person who suffers detriment bus, point 2, holds "the words 'damages from the unlawful act or omission of for a wrong' are, in substance, accordanother may recover from the person ing to their legal definition, equivalent in default a compensation therefor in to the words, 'money due on contract,' money, which is called damages." See the former phrase being broader than vol. 2, p. 384, § 3281. Rutherford and including the latter according to defines it: "Every loss or diminution ordinary legal phraseology and meanof what is a man's own, occasioned by ing." Lovings v. Norfolk, etc., R. Co., the fault of another." See Ruth. Inst. 47 W. Va. 582, 35 S. E. 962. (Balt. Ed. 1832), bk. 1, ch. 17, § 1. And Webster, in his dictionary, defines it as "the estimated reparation for detriment injury sustained." These definitions are all substantially the Pegram v. Stortz, 31 W. Va. same. or 221, 6 S. E. 490. The words "damages for a wrong" are, in substance, according to their legal definition, equivalent to the words "money due on contract;" the former phrase being broader than and including the latter according to ordinary legal phraseology and meaning. "Then, are the words 'damages for a wrong' in substance the same as 'money due on contracts?' The meaning of the word 'damages' is a compensation, recompense, or satisfaction in money; 'wrong' means any deprivation of right, breach of contract, or injury done by one person to another. Hence 'damages for a wrong' means 'money given for a breach of contract' as well as any other deprivation of right or injury to person or property. The words 'damages for a wrong' therefore not only include 'money due on contract,' but money which one is entitled to recover off of another for any purpose whatsoever, and is the much broader and more inclusive expression." O'Connor v. Dils, 43 W. Va. 54, B. COMPENSATORY DAMAGES. Compensatory damages are such as indemnify the plaintiff, including injury to property, loss of time and necessary expenses, counsel fees and other actual losses. Ogg v. Murdock, 25 W. Va. 146. Damages are either actual or compensatory, exemplary or punitive. As expressed by Riely, J., in Norfolk, etc., R. Co. v. Neely, 91 Va. 540, 22 S. E. 367, "Actual or compensatory damages are the measure of the loss or injury sustained, while exemplary or punitive damages are 'something in addition to full compensation, and something not given as his due, but for the protection of the public.'" Compensatory damages are such as measure the actual loss, and are given as amends therefor. Talbott v. West Virginia, etc., R. Co., 42 W. Va. 560, 26 S. E. 311. C. EXEMPLARY DAMAGES. See the title EXEMPLARY DAMAGES. II. Damnum Absque Injuria. There can be no negligence charged upon a person unless he rests under a duty to the person complaining of damage at his hands; for if there is no 993. duty violated, though there may be of property abutting on the railroad, grave damage befalling the complain- is damnum absque injuria for which ing party, he has no ground of action. no compensation can be had. RichIt is a case denominated in law as mond Traction Co. v. Murphy, 98 Va. "damnum absque injuria,”-damage 104, 34 S. E. 982; Fisher v. Seaboard, done, but without violation of a right etc., R. Co., 102 Va. 363, 46 S. E. 381. in the injured party; a misfortune un- A municipal corporation, acting accompanied by a breach of duty by within scope of its powers with reasonthe party inflicting the injury. Ritz able care and skill, in opening, grading v. Wheeling, 45 W. Va. 262, 31 S. E. and improving its streets, is not liable to the adjacent owner whose land is not actually taken, for consequential damages to his premises, unless there is a provision in its charter, or in some statute, creating the liability. It is damnum absque injuria. Smith ย. Alexandria, 33 Gratt. 208; Kehrer v. Richmond, 81 Va. 745; Roanoke Gas Co. v. Roanoke, 88 Va. 810, 14 S. E. 665; Davenport v. Richmond, 81 Va. 636; Richmond, etc., R. Co. v. Richmond, 26 Gratt. 83. Unless an act is wrongful in the sense of being unlawful, it will not sustain a suit for damages. Pickens v. Coal River, etc., Co., 51 W. Va. 445, 41 S. E. 400. "A legal right must be invaded in order that an action of tort may be maintained. The mere fact that a complainant may have suffered damage of the kind which the law recognizes is not enough. There must also be a violation of a duty recognized by law. In the language of the civil law mere damnum is not enough; there must also be injuria; that is, 'Exdamno absque injuria non oritur actio.'" 1 Jag Torts, § 7. We must nicely distinguish between damnum and injuria. We commonly use the words "injury" and "damage" indiscriminately, but in the rule above these Latin words are distinct. "Damnum" means only harm, hurt, lost, damage; while "injuria" comes from "in," against, and "jus," right, and means something done against the right of the party, producing damage, and has no reference to the fact or amount of damage. Unless a right is violated, though there be damage, it is damnum absque injuria. Such is the case under the first count of the declaration. The plaintiff had a perfect right to operate its business. So had the defendants the right to operate theirs." Transportation Co. v. Standard Oil Co., 50 W. Va. 611, 40 S. E. 592, 88 Am. St. Rep. 892, 56 L. R. A. 804. Damages to Abutting Owners. Consequential damages to property by the construction of a railroad in front Fair Competition.-Damage to another in his business resulting from fair competition is not actionable, unless he violates some such right as by interfering and inducing another to violate his contract. Transportation Co. v. Standard Oil Co., 50 W. Va. 611, 40 S. E. 591, 88 Am. St. Rep. 892, 56 L. R. A. 804. One may, without liability, in furtherance of his own interest in the competition of business, establish any works competing with another, and may induce customers of that other to withdraw their patronage from him, in order to obtain business for himself, though it injure, and is intended to injure that other person's business, if there is no contract between such person and his customers. The motive of the person so doing, though malicious, is not material, his acts being lawful. But if he induce such withdrawal of custom not in bona fide neighborly advice, nor in free right of competition to benefit his own business, but wantonly only to injure that other person, he is liable to action. What one may do thus, several, with same justification, may combine to do. Transporta |