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$ 889. Mitigation of.— If defendant fails to sustain his plea of justification he may offer in mitigation of damages anything tending to show that he acted without malice. Baker v. Kansas City Times, * 18 Am. L. Reg. (N. S.), 101.

$ $90. The amount of damages in such cases is left to the discretion of the jury. Ibid.

$ 891. Excessive damages.— Where the publicity given to a libel, charging plaintiff with having committed adultery, published in defendant's paper, is very great, owing to the large circulation of such paper, a verdict for $3,875 will not be disturbed as being excessive. Gibson v. Cincinnati Enquirer, 2 Flip., 121 ; 5 Cent. L. J., 380 (SS 518–20).

$ 892. In an action by a female passenger to recover damages for her wrongful and forcible expulsion from the ladies' car of defendant's train a verdict for $3,000 was rendered. The jury were charged against rendering an excessive verdict, and cautioned against prejudice and passion. Held, that the verdict was not excessive and would not be disturbed. Brown v. Memphis & C. R. Co., 7 Fed. R., 51 (SS 208–13).

$ 893. Rule for estimating damages. Flint v. Norwich & N. Y. Transp. Co., 6 Blatch., 158 (SS 194–95).

$ 894. Damages for disfigurement of face ($500), physical and mental pain caused by the injury ($1,000), counsel fees ($300), expenses of sickness ($100) and loss of time ($100), beld proper to allow a girl injured on shipboard by a part of the cargo falling upon her. The Oriflamme, 3 Saw., 397 (SS 228-32).

S $95. A passenger on a ship fell through a batchway negligently left open, injuring his knee to such an extent that he was obliged to keep his room until the arrival of the vessel in port, when he was taken home and there confined in care of a surgeon for three weeks. At the time of the trial, about one year after the accident, the effect of the injury to the knee was still felt “in great pain, just like needles," at times preventing sleep. Held, that a verdict of $2,000 was not excessive under the circumstances. Reiss v. North German Lloyd, 11 Fed. R., 844.

$ 896. Five thousand dollars for killing a woman, who was superior as a wife, mother and member of society, is not excessive. Whiton v. Chicago & N. W. R. R. Co., 2 Biss., 282.

$ 897. Where plaintiff was kept imprisoned for one hundred and thirteen days by military authority, whereas it was the duty of the military to deliver him over to the civil authorities within five days after his arrest, held, that a verdict for $3,500 was not excessive. Waters v. Campbell,* 5 Saw., 18.

$ 898. Miscellaneous.— A person who wrongfully sells another's land is liable to the owner for the value of the land at the time of sale, whether he receives the purchase money or not. Flagg v. Mann, 3 Sumn., 93.

$ $99. In an action for damages for the death of a horse, caused by the collision of a competing horse in a horse-race, the damages must be estimated at what is shown to have been the value of the horse killed. McKay v. Irvine, * 10 Fed. R., 725.

$ 900. To recover the total value of an article injured by the defendant, the plaintiff must prore either a total loss, or that the article was so far injured that it would cost as much as it was worth to restore it. Dowdall v. Pennsylvania R. Co., 13 Blatch., 403.

$901. A warehouse, situated on the banks of a navigable river, was ignited by sparks proceeding from the smoke-stack of a steam propeller and entirely destroyed. In an action by the owners of the warehouse against the vessel owners the latter set up in defense the act of congress of March 3, 1851, by which the liability of vessel owners is limited in certain cases to the value of the interest of such owners in the same. Held, that this act does not apply to damage done by a vessel to property situate on land, and the defendant, if liable at all, is liable for the entire amount of property destroyed. King v. American Transportation Co.,* 1 Flip., 1.

$ 902. Special damage was not averred in the plaintiff's declaration. Held, that special damages, whether resulting from tort or breach of contract, must be particularly averred in order that the defendant may be notified of the charge and come prepared to meet it. Special, as contradistinguished from general, damage, is that which is the natural, but not the necessary, consequence of the act complained of. Roberts v. Graham, * 6 Wall., 578.

$ 903. A seaman who is imprisoned and left behind by the vessel can recover damages against it by proceedings in rem. The damages will include wages for the time of his imprisonment and detention and money spent by him in getting away. But compensatory damages are not to be included in admiralty in such a proceeding. The Maria, Bl. & How., 331.

425

XIII. MISCELLANEOUS.

SUMMARY City not liable for non-performance of governmental duty, SS 904–906; nor for

unlawful acts of officers, & 906. — Bombardment by naval officers, & 907.- Fruudulent act of notary public, S 908. — Military officers, 8 909.- Acts of contractors, & 910.- Wharves, SS 911, 912.— Damage caused by city while exercising a governmental function, $ 913.

$ 904. The plaintiff was the owner of a parcel of land within the corporate limits of the city of Bridgeport, upon which a planing-mill, foundry and other buildings were situate. A number of persons entered upon the plaintiff's premises and tore down and removed the buildings, and carried away the engines and machinery connected 'therewith, and converted them to their own use. The defendant had knowledge of their unlawful acts, but it did not perform its governmental duties. Held, on demurrer, that a city which has assumed, or on which is imposed, a public governmental duty is not liable for the non-performance or negligent performance of such duty. Hart v. City of Bridgeport, SS 914–916.

$ 903. Public duties are in general those which are exercised by the state as a part of its sovereignty for the benefit of the whole public, and the discharge of which is delegated or imposed by the state upon the municipal corporation. Ibid.

$ 906. A corporation is not liable for the unlawful acts of its ofiicers, committed ultra vires, and not colore officii, in the known and wilful violation of law. Ibid.

$ 907. An officer of the United States navy, in his capacity as such officer, with the naval force under his command, caused a town in a foreign country to be bombarded. Such bombardment caused the destruction of property of citizens of the United States residing there, and an action of trespass was brought against the officer. Held, (1) that it was a sufficient defense that the bombardment had been carried on in pursuance of lawful and public orders from the president of the United States and the secretary of the navy. (2) That the duty of the president to interpose for the protection of the lives and property of citizens of the United States abroad is a duty in its nature purely discretionary, and where a public act or order rests in executive discretion neither he nor his subordinates are personally civilly responsible for the consequences. Durand v. Hollins, § 917.

$ 908. Where a notary public makes a fraudulent certificate of acknowledgment of a deed of certain land, a subsequent purchaser of such land, who is compelled after discovery of the fraud to pay a large sum of money to perfect his title, cannot recover it from the notary. Ware v. Brown, S 918.

$ 909. In times of peace military officers are liable for their torts the same as civilians, and cannot excuse them by pleading the commands of a superior officer. Bates v. Clark, SS 919-922.

$ 910. An act of the legislature declaring a company shall not be liable for the acts of any person or persons who shall have contracted, or who shall contract, with it to construct,” etc., held merely to exempt it from liability for acts of independent contractors, and not for acts of those over whom it has control. Railroad Company v. Hanning, SS 9:23-926.

& 911. A person passing upon or over a wharf is not a trespasser, where the public has been accustomed to use it, although it has been changed to a private wharf. Notice of the change must first have been given. Ibid.

912. A railway company that employs a contractor to build a wharf for it, retaining control of the manner in which he is to build it, is liable for the negligence of him or his serv. ants in doing the work if a third person is injured thereby. Ibid.

$ 913. A transportation company owned land fronting on a navigable river in a city. The city, iu the course of extending a street across the river by means of a tunnel under it, built a coffer-dam in the river, which obstructed access to the transportation company's wharf and lot for some time; and the excavations necessary for the tunnel caused a wall owned by the company to sink. It sued the city for damages. Held, no recovery, since the city, in building the tunnel, was only exercising a governmental function as agent of the state; that the case did not come within the constitutional provision requiring the compensation of owners whose property is taken or damaged for public benefit; that the case was distinguishable from a similar injury by one individual to another. Transportation Co. v. Chicago, SS 927933. [NOTES. — See SS 934–1074.]

426

HART v. CITY OF BRIDGEPORT.

(Circuit Court for Connecticut: 13 Blatchford, 289-294. 1876.)

Opinion by SHIPMAN, J.

STATEMENT OF Facts. This is an action of trespass on the case, against the city of Bridgeport, a municipal corporation incorporated by the legislature of the state of Connecticut. The plaintiff, a citizen of the state of New York, alleges in his declaration that, on June 23, 1869, he was, and ever since has been, the owner and possessor of a described parcel of land within the corporate limits of the city of Bridgeport, and upon which a planing-mill, foundry and other buildings were situate, and that he was also the owner of a steamengine, boiler and other machinery situate in said buildings, of all which real and personal property he was, on said day, entitled to the undisturbed and quiet enjoyment; that, “on said day, the defendant was, and ever since has been, a municipal corporation under and by virtue of the laws of the state of Connecticut, having a mayor and other executive officers under bis and its control, and having police authority and powers and a legally constituted police, einployed and paid by said city and under its control, and having all other powers incident to, and necessary for, the full and ample protection of property within its limits, and especially for the protection of the property of the plaintiff, herein before described, from the injury, wrongs and trespasses hereinafter mentioned, all of which powers were given and granted to the defendant to enable it, among other things, to protect the said property of the plaintiff and others, and that it then became and was, and ever since has been, the duty of said city of Bridgeport, by reason of the facts aforesaid and by virtue of the laws of said state of Connecticut, to protect the plaintiff from the injury to bis said property and estate hereinafter mentioned and described; yet the plaintiff says that the defendant, its duty in the premises not regarding, did not perform the same and did not protect the plaintiff in the possession, use and enjoyment of his said property, but wholly neglected and refused to protect him therein, as it might have done and as it was its duty to have done, but, its said duty not regarding, and contriving and intending to injure the plaintiff, the defendant, on the said 23d day of June, 1869, suffered sundry persons, without law or right, and contrary to the mind and will of the plaintiff, and with the full knowledge and assent of the defendant, and in presence of the mayor and police of said city of Bridgeport, with force and arms, to enter into and upon the said premises of the plaintiff, then in the possession of the plaintiff, and to continue in and upon said premises thereafter until and upon the 27th day of June, 1869, and with the knowledge and consent of the defendant and of the mayor and police aforesaid, on and during the days aforesaid, unlawfully and with force and arms to eject the plaintiff from said premises, and tear down and remove said building, and carry away, break and destroy said steam-engine and boiler, and said machinery and patterns, and dispose of the same to their own use, whereby the plaintiff has wholly lost and been deprived of the same, though the plaintiff then and there requested and demanded said defendant to protect him in his said property from said unlawful acts so done as aforesaid, as the defendant well knew that all said acts of violence by which said property was so destroyed were done without right, or claim of right, to do the same, and that the same were done in violation of law; yet, then and there contriving and intending to injure the plaintiff, the defendant, by its officers and agents, protected said persons in the doing of said unlawful acts and in the destruction of said property, and, by its officers and agents, then and there prevented the plaintiff from resisting the destruction of said property as he might and would lawfully have done had he not been so prevented by the defendant, by means of which neglect, wrongful acts and trespasses of the defendant, the plaintiff has been greatly injured and has lost and been deprived of said buildings, steam-engine, boiler, machinery and patterns of machinery, to the damage of the plaintiff.” To this declaration the defendant has demurred generally.

$ 914. A city is not liable for the non-performance of public governmental duties.

(1) The principal question of law presented by the demurrer is whether a municipal corporation is liable to an injured party for the negligence of the mayor and its public officers, who have sufficient power and ability to preserve the peace and protect property, in not discharging the duty of protecting private property against a known violation of law. The general question of the liability of municipal corporations for negligence in the performance of public governmental duties, and in the performance of corporate duties, has been frequently considered by the courts in this country. The decisions of those courts, to which we are accustomed to yield the highest respect, have been uniform, and the results which they have reached are clearly stated by Chief Justice Butler in Jewett v. New Haven, 38 Conn., 387. The principles which are here quoted, though contained in a dissenting opinion, are those which have been adopted by an undivided court in four recent cases in this state. The dissent was upon the application of the principles in the particular case which was then under consideration. The learned chief justice says: “1. Officers and agents of the government partake of its immunity, and are not liable for negligence in the performance of functions or duties which are strictly governmental, whether such agents act in a corporate or individual capacity. But such immunity does not reach to or protect a contractor or bis servants, who contract with the government or its officers and agents to perform a governmental work. 2. Municipal corporations, to the extent that they are authorized or directed to exercise public governmental powers and perform public governmental duties solely for the general good, are govern. mental agencies, and entitled to immunity in respect to the acts of their subordinate officers or agents. But where the power and duty are not governmental, and, in special cases, where they are, but where the corporations derive some special pecuniary benefit or advantage from the exercise of the power, or have specially undertaken to perform the duty, in consideration of some special advantage, the rule is otherwise, and they are liable, like other corporations, for actual misfeasance. 3. The original and ordinary municipal agencies for this state are counties, towns and school districts. Special city and borough charters have also been granted to the inhabitants of densely populated portions of towns, at their request, in part to enable them to exercise the ordinary governmental powers which the town before exercised over the same territory more efficiently, but mainly to enable them to enjoy a variety of other special powers and privileges not governmental for the special benefit of the local community.” To the same effect are the cases of Oliver v. Worcester, 102 Mass., 489; Buttrick v. Lowell, 1 Allen, 172; Richmond v. Long, 17 Gratt., 375; Western Sav. Funds Society v. City of Philadelphia, 31 Pa. St., 175; Bailey v. Mayor of New York, 3 Hill, 531; Lloyd v. Mayor of New York, 1 Seld., 369; Martin v. Brooklyn, 1 Hill, 545; Western Homeopathic College v. Cleveland, 12 Ohio St., 395; Hewison v. New Haven, 37 Conn., 475; Forbush v. Norwich, 38 Conn., 225; Mead v. New Haven, 40 Conn., 72, and Weightman v. Washington, 1 Black, 39, 49 (SS 805-6, supra). And it may be considered as settled that “a city which has assumed, or on which is imposed, a public governmental duty, is not liable for the non-performance or negligent performance of such duty, and it makes no difference that the duty is imposed by a special charter which the city has accepted.” Hewison v. New Haven, 37 Conn., 475.

§ 915. Distinction between public governmental and private corporate duties.

The principal difficulty which courts have experienced has been in ascertaining, clearly and accurately, the line of demarcation between public governmental duties and private or corporate duties, and has not been in the determination of the question whether, for a refusal to discharge public duties, the corporation was or was not liable. Public duties are, in general, those which are exercised by the state as a part of its sovereignty for the benefit of the whole public, and the discharge of wbich is delegated or imposed by the state upon the municipal corporation. They are not exercised either by the state or the corporation for its own emolument or benefit, but for the benefit and protection of the entire population. Familiar examples of such governmental duties are the duty of preserving the peace, and the protection of property from wrong-doers, the construction of highways, the protection of health and the prevention of nuisances. The execution of these duties is undertaken by the government because there is a universal obligation resting upon the government to protect all its citizens, and because the prevention of crime, the preservation of health and the construction of means of intercommunication are benefits in which the whole community is alike and equally interested. Private or corporate powers are those wbich the city is authorized to execute for its own emolument, and from which it derives special advantage, or for the increased comfort of its citizens, or for the well ordering and convenient regulation of particular classes of the business of its inhabitants, but are not exercised in the discharge of those general and recognized duties which are undertaken by the government for the universal benefit. Examples of well understood corporate powers are the right to make sewers,

, to introduce water and gas, to establish parks, to build public markets, to regulate private carriers. The difference between these two classes of duties is thus stated by Chief Justice Nelson in Bailey v. Mayor of New York, 3 Hill, 539: “The distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character. But, if the grant was for the purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company."

Such being the general distinction between governmental and corporate duties, there has never been any difference of opinion as to the class within which the preservation of the peace and the protection of property belongs. The duty has universally been considered to be of a public nature. It is discharged, in general, by the police force of the state or city. These officers are officers of the law, whose appointment is delegated to the city by the state, in order that this general duty may be easily and conveniently performed, and

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