36

their destruction,35 and this is the rule where growing hedges are destroyed. It is proper in an action for the destruction of an orchard to show the market value of the apples produced by the trees in estimating the damages.37

§ 7239. Injury to Reputation from Sale of Plants Injured by Negligent Act of Another.-Loss of reputation from the sale of a product injured by the wrongful act of another can be recovered only where the injury from this source was the legal and natural consequence of the negligence charged. On this ground the owner of a greenhouse whose plants were injured by gas escaping from the pipes of a gas company was refused a recovery for injuries to his business reputation resulting from the sale of plants supposed by him to be uninjured, but which proved to be weakened, and which failed to grow as they otherwise would have, no circumstances of gross negligence or acts of special aggravation being shown.38

§ 7240. Negligent Destruction of Buildings and Contents.-The measure of damages for the destruction of a building by fire through

Louisville &c. R. Co. v. Spencer, 149 Ill. 97; Greenfield v. Chicago &c. R. Co., 83 Iowa 270; s. c. 49 N. W. Rep. 95; Krejci v. Chicago &c. R. Co., 117 Iowa 344; s. c. 90 N. W. Rep. 708; Rowe v. Chicago &c. R. Co., 102 Iowa 286; s. c. 71 N. W. Rep. 409; Atchison &c. R. Co. v. Geiser, 68 Kan. 281; s. c. 75 Pac, Rep. 68; Kansas City &c. R. Co. v. Perry, 65 Kan. 792; s. c. 70 Pac. Rep. 876; Missouri &c. R. Co. v. Haynes, 1 Kan. App. 586; St. Louis &c. R. Co. v. Hoover, 3 Kan. App. 577; Hayes v. Chicago &c. R. Co., 45 Minn. 17; s. c. 47 N. W. Rep. 260; Ward v. Chicago &c. R. Co., 61 Minn. 449; Donahue v. Keystone Gas Co., 90 App. Div. (N. Y.) 386; s. c. 85 N. Y. Supp. 478; Dwight v. Elmira &c. R. Co., 132 N. Y. 199; s. c. 15 L. R. A. 612; Baylor v. Stevens, 16 Pa. Super. Ct. 365; Dent v. South Bound R. Co., 61 S. C. 329; s. c. 39 S. E. Rep. 527; Fort Worth &c. R. Co. v. Wallace, 74 Tex. 581; Missouri &c. R. Co. v. Fulmore (Tex. Civ. App.), 29 S. W. Rep. 688; Moore v. Chicago &c. R. Co., 78 Wis. 120. But see Kansas City &c. R. Co. v. Rogers, 48 Neb. 653; s. c. 4 Am. & Eng. R. Cas. (N. S.) 617; 67 N. W. Rep. 602; Missouri Pac. R. Co. v. Tipton, 61 Neb. 49; s. c. 84 N. W. Rep. 416; Ducktown Sulphur &c. Co. v. Barnes (Tenn.), 60 S. W.

Rep. 593 (no off. rep.); White v. Chicago &c. R. Co., 1 S. D. 326; s. c. 9 L. R. A. 824; 45 Am. & Eng. R. Cas. N. S. 565; 47 N. W. Rep. 146. Plaintiff conveyed a right of way to defendant, reserving the trees thereon, for the destruction of which defendant was to pay their reasonable value. It was held that in an action to recover for trees destroyed the measure of damages is not the difference in value of the land before and after their destruction, but the value of the trees so destroyed, since the ownership of the land under the conveyance was distinct from that of the trees: Cooley v. Kansas City &c. R. Co., 149 Mo. App. 487; s. c. 51 S. W. Rep. 101. See Vol. II, § 2383, et seq.

36 Bradley v. Iowa Cent. R. Co., 111 Iowa 562; s. c. 82 N. W. Rep. 996; Swanson v. Keokuk &c. R. Co., 116 Iowa 304; s. c. 80 N. W. Rep. 1088; Atchison &c. R. Co. v. Arthurs, 63 Kan. 404; s. c. 65 Pac. Rep. 651. And this would seem to be the case with other kinds of fences: International &c. R. Co. v. McIver (Tex. Civ. App.), 40 S. W. Rep. 438.

* Krejci v. Chicago &c. R. Co., 117 Iowa 344; s. c. 90 N. W. Rep. 708.

38 Dow v. Winnipesaukee Gas &c. Co., 69 N. H. 312; s. c. 41 Atl. Rep. 288; 42 L. R. A. 569.

41

39

negligence is the actual value of the building at the time of the fire, to be ascertained by taking into account its original cost and the cost of replacing it, and making such allowance for depreciation from use, age, and other like causes as its condition requires. The market value is not to be considered.40 In some cases it has been permitted to attain this result by taking the difference in the value of the land immediately before and after the fire. In the case of the destruction of a factory, the value of the property as an entirety as a manufacturing plant may be shown.42 The cost of removing the debris under orders of the municipal authorities may be added in case of the negligent destruction of a building. The value of the contents of a building is the actual worth of the articles to the owner for use in the condition in which they were at the time of the fire, to be ascertained by taking the cost of the articles when new, the length of the time they had been used, and the condition they were in at the time of the fire. The damages for the negligent destruction of a residence may include damages to the occupants from being compelled to

39

45

43

Cleland v. Thornton, 43 Cal. 437; State Ins. Co. v. Taylor, 14 Colo. 499; Washington Mills Emery Mfg. Co. v. Commercial F. Ins. Co., 13 Fed. Rep. 646; Jacksonville &c. R. Co. v. Peninsular Land &c. Co., 27 Fla. 1, 157; s. c. 9 South. Rep. Rep. 661; 17 L. R. A. 33; Freeland v. Muscatine, 9 Iowa 461; Etna Ins. Co. v. Johnson, 11 Bush (Ky.) 587; s. c. 21 Am. Rep. 223; Wall v. Platt, 169 Mass. 398; s. c. 48 N. E. Rep. 270; 9 Am. & Eng. R. Cas. (N. S.) 563; Mathews v. Missouri &c. R. Co., 142 Mo. 645; s. c. 10 Am. & Eng. R. Cas. (N. S.) 673; 44 S. W. Rep. 802; Laurent v. Chatham F. Ins. Co., 1 Hall (N. Y.) 41; Pacific Exp. Co. v. Smith, 81 Tex. 85; s. c. 16 S. W. Rep. 998. In a suit for the destruction of an old and dilapidated building, it is error to allow witnesses to make and testify to estimates on the cost of the construction of a new building: Chicago &c. R. Co. v. Davis, 78 Ill. App. 58.

McMahon v. Dubuque, 107 Iowa 62; s. c. 5 Am. Neg. Rep. 147; 77 N. W. Rep. 517.

"Pacific Exp. Co. v. Lasker Real Estate Assn., 81 Tex. 81; s. c. 16 S. W. Rep. 792. Evidence of the depreciation in value of realty arising from the destruction of buildings by a fire set by defendant's locomotive

44

was admissible under a complaint alleging that plaintiff owned the lands on which the buildings were situate, and a bill of particulars of the items of the loss which included the buildings: Jamieson v. New York &c. R. Co., 162 N. Y. 630; s. c. 57 N. E. Rep. 1113; aff'g s. c. 11 App. Div. (N. Y.) 50; 42 N. Y. Supp. 915.

"Pittsburg &c. R. Co. v. Indiana Horseshoe Co., 154 Ind. 322; s. c. 56 N. E. Rep. 766.

43

13 McPhillips v. Fitzgerald, 177 N. Y. 543; s. c. 69 N. E. Rep. 1126; aff'g s. c. 76 App. Div. (N. Y.) 15; 78 N. Y. Supp. 631.

"Denver &c. R. Co. v. Frame, 6 Colo. 382; Atchison &c. R. Co. v. Stanford, 12 Kan. 354; s. c. 15 Am. Rep. 362; Wall v. Platt, 169 Mass. 398; s. c. 48 N. E. Rep. 270; 9 Am. & Eng. R. Cas. (N. S.) 563; Sun Fire Office v. Ayerst, 37 Neb. 184; Fairfax v. New York &c. R. Co., 73 N. Y. 167; s. c. 29 Am. Rep. 119; Starkey v. Kelly, 50 N. Y. 676; International &c. R. Co. v. Nicholson, 61 Tex. 550; International &c. R. Co. v. Searight, 8 Tex. Civ. App. 593; Highland v. Houston &c. R. Co. (Tex. Civ. App.), 65 S. W. Rep. 649 (poultry in barn).

45 Wall v. Platt, 169 Mass. 398; s. c. 48 N. E. Rep. 270; 9 Am. & Eng. R Cas. (N. S.) 563.

flee at night insufficiently clothed, but not damages from sleeping on a neighbor's floor after the destruction of their home, such damages not being considered the proximate result of the negligence.**

$7241. Injury to Building by Explosion of Dynamite.-The measure of damages for the injury to a building caused by the discharge of dynamite blasts in making a neighboring excavation is the cost of placing the building in as good a condition as before the damage.1

48

§ 7242. Personal Property-Loss of Use. With respect to personal property, the authorities are not in unison upon the question as to whether or not the plaintiff is entitled to recover for the loss of its use during the time necessarily occupied in effecting repairs. The rule seems to be that this is a proper element of damages. 49 The doctrine, however, is denied in Maine, where the rule of damages in such cases is stated thus: "In actions for injuries to personal property, the rule of damages, where no circumstances of aggravation are shown, is the difference in the value of the article before and after injury. If the article is wholly destroyed, its fair market value at the time of its destruction, and a sum equal to lawful interest from that time to the time of the assessment of the damages, make up the amount which the plaintiff is entitled to recover. If the article is only partially destroyed, and the plaintiff retains it, the amount which he is entitled to recover is the difference between the value of the article before it was injured and its value in its injured condition. To this amount may be added a sum equal to interest from the time of the injury to the time of rendering the verdict. But to these sums nothing can properly be added for loss of the use of the article. And especially is this true where, as in this case, there is no claim in the writ for such damages. Such damages are very uncertain. They are not necessarily a direct result of the injury, for the plaintiff may have had no occasion to use the article, or may have been able to supply himself with another, equally convenient, at little or no expense. They are, at most, not direct, but uncertain and consequential; and to entitle a party to recover such damages, in any case, he ought to be required to declare for them, that the other party may have notice of the claim

48 Serafina v. Galveston &c. R. Co. (Tex. Civ. App.), 42 S. W. Rep. 142.

47 Serafina v. Galveston &c. R. Co. (Tex. Civ. App.), 42 S. W. Rep. 142.

48 Fitzsimons & Connell Co. V. Braun, 199 Ill. 390; s. c. 65 N. E. Rep. 249; aff'g s. c. 94 Ill. App. 533.

49 Wheeler v. Townshend, 42 Vt. 15; Oleson v. Brown, 41 Wis. 413; Shelbyville &c. R. Co. v. Lewark, 4 Ind. 471; Streett v. Laumier, 34 Mo. 469.

and be prepared to meet it. But, whatever may be the rule in other cases, we are clear that in actions against towns for injuries claimed to have been received through defects in highways, no such new element of damage ought to be introduced. For some unaccountable reason, verdicts against towns, in such cases, are now enormously large, and seem to be growing constantly larger; and to allow the introduction of a new element of damage, of so uncertain a character as the loss of the use of a mere chattel, would be a step in the wrong direction. If the article was wholly destroyed, we presume no one would think of claiming damages for the loss of the use of it, in addition to its full value. And we see no reason why a different rule should prevail where the loss is only temporary. It will take no longer to supply the loss in the one case than in the other. And again, an article that is being used is being constantly worn out. The loss in wear and tear is, in the end, equivalent to its full value. To allow a party to recover for the use of an article which in fact is not used, and also its full value, would be to allow him double damages for the same injury."50

§7243. Injuries to Vehicle.-The owner of a vehicle injured by the negligence of another may recover the reasonable cost of necessary repairs, and not what he paid for such repairs, unless the reasonableness of the expenditure and its necessity are shown.51 He is also entitled to recover the expenses paid for removing the vehicle from the place where the injury was received and storing it during such time as arrangements could be made for repairs,52 and a reasonable amount for the use of a like vehicle while it was being repaired.53 In case the vehicle is so injured as to be rendered useless, its total value can be recovered, but nothing for the use of another vehicle which the owner hired to replace the injured wagon.54 Where neither the driver nor

McLaughlin v. Bangor, 58 Me. 399. See also, Hughes v. Quentin, 8 Car. & P. 703.

Edge v. Third Ave. R. Co., 57 App. Div. (N. Y.) 29; s. c. 67 N. Y. Supp. 1002; Rock v. Interurban St. R. Co., 40 Misc. (N. Y.) 664; s. c. 83 N. Y. Supp. 114; Volkmar v. Third Ave. R. Co., 28 Misc. (N. Y.) 141; s. c. 58 N. Y. Supp. 1021; rever'g s. c. 27 Misc. (N. Y.) 818; 57 N. Y. Supp. 1149; Warshawsky v. Dry Dock &c. R. Co., 86 N. Y. Supp. 748; Overpeck v. Rapid City, 14 S. D. 507; s. c. 85 N. W. Rep. 990. But this rule may be relaxed where the amount is small and concerns matters within the knowledge of the jury, in which case failure to prove

reasonableness may be overlooked: Chaperon v. Portland General Electric Co., 41 Or. 39; s. c. 67 S. W. Rep. 928.

52 Moore v. Metropolitan St. R. Co., 84 App. Div. (N. Y.) 613; s. c. 82 N. Y. Supp. 778.

63 Moore v. Metropolitan St. R. Co., 84 App. Div. (N. Y.) 613; s. c. 82 N. Y. Supp. 778; Rogers v. Interurban St. R. Co., 84 N. Y. Supp. 974; Volkmar v. Third Ave. R. Co., 28 Misc. (N. Y.) 141; s. c. 58 N. Y. Supp. 1021; rever'g s. c. 27 Misc. (N. Y.) 818; 57 N. Y. Supp. 1149; Wellman v. Miner, 19 Misc. (N. Y.) 644; s. c. 44 N. Y. Supp. 417.

Reis v. Long Island R. Co., 84 N. Y. Supp. 881.

the horse was prevented by the injury to the vehicle from performing other duties pending the repairs, the pay of the driver and the expense of keeping the horse are not to be included.":

55

§ 7244. Loss of Property of Guest at Hotel.-The damages recoverable for the loss of property by the negligence of an innkeeper is the market value of the property at the time of the loss, to which interest may be added. In determining this question, the cost of the property may be considered, but evidence of cost without more is not sufficient proof of its market value.57

§ 7245. Injury to Traction Engine by Collision.-The owner of a traction engine rendered useless by a collision with a railroad train may recover the reasonable cash value of the engine just before the injury, less the reasonable cash value after the injury, or, if the engine could be restored, then the reasonable cash value of making the repairs, together with the reasonable cash value of the use of the engine during the time it would reasonably take to effect the repairs.58

60

61

.59

§ 7246. Damages from the Death or Injury of Domestic Animals. -The measure of damages for the death of domestic animals killed through negligence is their value at the time of the negligent killing ;"" and on this question it may be shown that the animal was well broken, or was in foal at the time." In the case of cows chiefly valuable for milk, it has been held proper to show the quantity and quality of milk given by the cow.2 The damages recoverable for injuries not resulting in death is the difference in the market value of the animals before and after the injuries,63 and whatever expenses

55 Newel v. Smith, 28 Misc. (N. Y.) 182; s. c. 58 N. Y. Supp. 1025. 56 Watson v. Loughran, 112 Ga. 837; s. c. 38 S. E. Rep. 82.

57 Watson v. Loughran, 112 Ga. 837; s. c. 38 S. E. Rep. 82.

58 Davidson v. Chicago &c. R. Co., 98 Mo. App. 142; s. c. 71 S. W. Rep. 1069.

Colbourn v. Wilmington,

· Del. -; s. c. 56 Atl. Rep. 605. Evidence of the value of a bull killed upon a railway track at the nearest market is admissible where there is no market for such animals in the county where it was killed: Gulf &c. R. Co. v. Dunman, 4 Tex. Civ. App. 147; s. c. 16 S. W. Rep. 421. See Vol. II, § 2208, et seq. 60 Southern Kansas

R. Co.

V.

Cooper, 32 Tex. Civ. App. 592; s. c. 75 S. W. Rep. 328.

61 Boyer v. Chicago &c. R. Co., Iowa -; s. c. 98 N. W. Rep. 764. 62 Taylor v. Spokane Falls &c. R. Co., 32 Wash. 450; s. c. 73 Pac. Rep. 499.

63 Montgomery St. R. Co. v. Hastings, 138 Ala. 432; s. c. 35 South. Rep. 412; Texas &c. R. Co. v. Meeks,

Tex. Civ. App. ; s. c. 74 S. W. Rep. 329. Where the court instructed the jury that the measure of damages for injury to a horse was the difference between the market value of the horse in the condition in which he was before said injury "and his market value after said injury," the words quoted were equivalent to the words "and his market