10. Held that, under Sec. 4, Chap. 247. Vol. 21, Laws of Delaware, a per-
son convicted of murder and sentenced to death in New Castle County, must be
confined in the County Workhouse as the public prison of the County, until the
time appointed for his execution, but that such sentence must be observed and
executed within said prison inclosure by the sheriff of the County in conformity
with the provisions of Sec. 11, Chap. 32, and of Sec. 30, Chap. 144, Rev. Code.
Ibid.
See ABORTION; ACCOMPLICE; APPEAL FROM MUNICIPAL COURT ; ASSAULT
AND BATTERY; ASSAULT WITH INTENT TO COMMIT MURDER; BARN BURN-
ING; BREAKING AND ENTERING, ETC.; CARRYING CONCEALED A DEADLY
WEAPON; EMBEZZLEMENT AS BAILEE; FALSE IMPRISONMENT; INTOXICAT-
ING LIQUOR; LARCENY; LASCIVIOUSLY PLAYING WITH FEMALE CHILD;
LOTTERY POLICY WRITING; MAIMING; MANSLAUGHTER; MISDEMEANOR;
MURDER; OBTAINING MONEY BY FALSE BRETENSE; USING FEMALE CHILD
FOR SEXUAL INTERCOURSE; WIFE BEATING.
CRIMINAL RESPONSIBILITY AND CAPACITY.-See CRIMINAL LAW;
Where the owner of real estate executes and delivers a deed of conveyance
therefor to another, without any reservation of the growing wheat crop, the said
crop, and all the ieterest of the grantor, whether as tenant, owner or otherwise,
passes to the grantee. Gam vs. Cordrey, 143.
DAMAGES.
I. In an action for malicious prosecution it is incumbent on the plaintiff to
prove that he has been prosecuted by the defendant as alleged in his declaration;
that said prosecution has terminated in his favor; that the prosecution was insti-
tuted by the defendant maliciously and without probable cause, and that he has
by reason thereof sustained damages. Herbener vs. Crossan, 38.
2. The ordinary rule controlling the subject of damages, in case the article
is lost, destroyed or injured during transportation, is the value of the article so
lost, destroyed or injured. If, however, there is a rule of the defendant com-
pany, of which the defendant had nottce when he shipped the goods, that the
liability of the company was fixed by the rate of freight paid, and that for the
purpose of obtaining a certain rate of freight he reported to the company a value
of the goods, thereby limiting as it were by tacit agreement, the liability to such a
sum as was named by him, that would be the amount of the liability of the com-
pany. But although there was such a rule, if the defendant had no notice of it,
the measure of damages would be the fair value of goods at the time of shipment.
Klair and Lort vs. Wil. Steamboat Co., 51.
3. Where, in an action against a railway company to recover damages for
injuries to plaintiff's wagon, the declaration specifically sets forth that the defen-
dant company negligently ran into the plaintiff's wagon, and describes the negli
gent act, it is sufficient. Donoho vs. W. C. Ry., 55.
4. If at the time of the accident the defendant company was using such
coupler, which was prohibited by the act of Congress, it was guilty of negligence
per se; and if the injuries complained of resulted from sucn unlawful use alone,
then the defendant would be liable. The law manifestly contemplates that the
car shall be so equipped that the coupling shall actually be made automatically,
and if not so equipped, the plaintiff did not assume the risk arising therefrom,
even though he continued in the employment of the defendant company afrer such
unlawful use of the cars had come to his knowledge.
Ry., 81.
5. In an action for damages for an assault and battery where the defendant
admits that he committed the assault and battery, the plaintiff is entitled, without
further evidence, to recover a verdict for at leas] a nominal sum of six cents, or
the like, although he may not have made proof of any actual injury; as it must
be presumed in such case that he has sustained some damage. Armstrong vs.
Rhoads, 155.
6. Compensatory damages are such as adequately measure the actual loss,
suffering and outlay, and are allowed as a pecuniary equivalent therefor. Exem-
plary or punitive damages are auch as exceed the loss etc., sustained, and are
given as a kind of punishment to the defendant with a view of preventing similar
wrongs in the future. Ibid.
7. Although it is true that no words merely, whether spoken, written or
printed, however insulting or opprobrious they may be, will justify an assault and
battery, or an assault even; yet such words may be given in evidence under the
general issue in mitigation of exemplary or punitive damages. Such words may
not, however, be given in evidence in mitigation of actual or compensatory
damages. Ibid.
8. In a civil action for the recovery of damages for assault and battery, the
previous conviction and fine of the defendant in a criminal action for the same
assault and battery, is not admissible in evidence to mitigate the damages. Ibid.
9. The rule as to the measure of damages stated where compensatory damages
only are claimed. Ibid.
When the libellous matter set out in each count of the plaintiff's declara-
tion is clearly libellous and actionable per se, and is stated in language that is
neither so ambiguous or equivocal as to require explanation by reference to any
extrinsic matter to show that it is actionable, the plaintiff is not called upon to
make allegations further than the supposed libellous matter as to the offense
charged; neither is he called upon to construe the said libellous matter, nor is he
bound to select and rely upon any offense or charge. Under our law and practice,
whatever is admissible in mitigation of damages may be proved under the general
issue, and cannot be specially pleaded. Donahoe vs. Star Pub. Co., 166.
11. When the words of the alleged libel impute to the plaintiff a crime punish-
able by the laws of the State they are actionable in themselves. In such case the
law presumes malice, and implies that the plaintiff has sustained some damage.,
Upon the plea of not guilty he would be entitled to a verdict for nominal damages
and also to such actual damages as he may prove. If express malice is proved,
viz., that the libel was composed and published in a vindictive and malevolent
spirit, with a malicious intent to injure the plaintiff, the plaintiff would be entitled
to punitive or exemplary damages also. Express malice, however, must be
proved; it is never presumed or implied. It may be proved either directly or
indirectly. Solely for the purpose of rebutting express malice, and in mitigation
of damages, and in no manner as a justification or in bar of the action, the defen-
dant may be permitted to put in evidence the acts, expressions and conduct of
the plaintiff, and the conditions surrounding him at the time set forth in the
alleged libel; and also to prove the general reputation and rumors which came
to the defendant before the publication of the libel. Ibid.
12. In an action for damages for writing or publishing an alleged libel,
the defendant, under a statute of this State (Ch. 449, Vol. 11, Laws of Dela-
wars) may plead and prove the truth of the charge, and that it was written
or published properly for public information, and with no malicious or mischievou
motives. If such a plea is made and sustained by proof, it is a complete defense
to the action. But if the defendant files no such plea of justification in bat of the
action, but only the plea of not guilty, the utmost effect of evidence that the
defendant had probable cause to believe that his charge against the plaintiff was
true, and that the publication was made for the public good, would be to nega-
tive express malice and thus defeat the claim for exemplary damages. Ibid.
13. If an unlawful assault and battery was committed by the defendant under
the immediate influence of the passion provoked by insulting and offensive language
of the plaintiff, this would not justify the jury in mitigating or reducing the com-
pensatory damages which but for such language they might find that the plaintiff
would be entitled to recover. Armstrong vs. Little, 255.
14. Even though the defendant company may have been negligent, yet if the
negligence of the plaintiff contributed to, or entered into the accident, at the time
of the injury, the plaintiff cannot recover, because he in that case would be guilty
of contributory negligence. Wilman vs. Peoples Ry., 260.
15. In an action for false imprisonment, plaintiff's damages are such expenses
as were incurred in procuring his discharge, loss of time, physical aud mental
suffering and the humiliation the arrest may have occasioned. Petit vs. Colmery,
16. In an action for false imprisonment, where exemplary damages are claimed,
defendant may, in mitigation, show that he was resisted by the plaintiff and any
relevant circumstances showing a reasonable provocation for the resort to force.
Ibid.
17. Where an injury is inflicted maliciously or wantonly, the jury are not
restricted to actual damages. but may give such damages in addition as the cir-
cumstances seem to warrant, to deter others from like offenses. Ibid.
18. If the servants of a railway company negligently and carelessly permit a
car to be overcrowded and by reason thereof lose control of the car and the
injury thereby happens, the company would be liable. McAllister vs. Peoples
Ry., 272.
19. If, however, the negligence of the plaintiff contributed to and proxi-
mately entered into the accident which resulted in the injury, he cannot recover.
Ibid.
20 When personal property is put up for sale at public auction and knocked
off to the highest bidder, the purchaser, upon complying with the terms of sale,
is entitled to have such property delivered to him, under the implied contract on
the part of the vendor to make such delivery. It is a breach of such implied
contract for the vendor to refuse to make such delivery. For such breach the
purchaser may sue and recover whatever damages he may have sustaided thereby.
Gruell vs. Clark, 321.
21. Where a breach of contract on the part of the defendant is proved to the
satisfaction of the jury, and there is no evidence that the plaintiff has sustained
actual damages, the plaintiff is entitled to recover nominal damages only; but the
measure of damages for the non-delivery of goods sold is the difference between
the contract price and the value of the goods at the time the defendant was bound
to delivery them. Ibid.
22. Counts in a declaration averring insufficient brakes and other appli-
ances to stop the car, are too general. The narr must specify the particular appli-
ance that, caused the injury, and especially how the injuries were received--by
falling, jumping, being struck, or otherwise, which is within the plaintiff's know-
ledge. Newton vs. Peoples Ry., 350.
23. A count whica averred that the defendant negligently and carelessly suf
fered and permitted a certain calender to be out of order and repair, whereby the
deceased was greatly injured, and by means of the premises instantly killed; held
insufficient because it does not specify in what respect the defendant omitted
to provide for the repair or keeping in repair the machine. Kennedy vs. Del.
24. An averment in plaintiff's declaration "that the said plaintiff was shaken
and jarred violently, whereby she was greatly hurt, shocked and injured, and
became and was sick, sore, disordered and nervously prostrated," held on
demurrer to be a sufficient statement of the injuries complained of.
vs. Wil. City Ry., 381.
25. In an action by a widow against a railroad company to recover damages for
the death of her husband, a witness for plaintiff having testified that he was
familiar with the crossing in question and its surroundings, and that there were
embankments, trees, etc., near said crossing which would obscure the traveler
view of an approaching train; held that the witness might give his judgment as to
whether the crossing was an unusually dangerous one. Reed vs. Q. A. R. R.,
413.
26. The measure of damages would be the difference between the value of
the cow in her diseased or defective condition, and her value if she had been
sound as represented by the defendant at the time of the sale. If the cow had
tuberculosis, and other cattle of the plaintiff were infected with that disease by
and from her, and from no other source, and thereby injured, the amount of the
damage would be increased by whatever loss the plaintiff may have suffered from
such infection of other cattle, together with the reasonable and proper costs and
expenses incurred in caring for and doctoring such sick cattle. Cummins vs.
Ennis, 425.
27.
In an action like the present the measure of damages is the difference
between the price at which the defendant contracted to furnish the tomatoes, and
the price which the plaintiff paid for tomatoes to supply the place of those the
defendant failed to deliver according to his contract. Hartnett vs. Baker, 431.
28. In an action for damages for false imprisonment the Secretary of the
town council testified that a certain book contained the ordinances of the said
town as regularly adopted at a meeting of the council. Held that the ordinance
was admissible, and that it was not incumbent upon the defendant to show that
the ordinance was authorized by the act of incorporation of said town. McCaffry
vs. Thomas, 437.
29. It may be shown at the trial, in mitigation of damages, what the defen-
dant earned. Ibid.
30. False imprisonment is the unlawful detention of the person of another
against his will. Where the imprisonment was unlawful the plaintiff, in an action
therefor, is entitled to recover such damages as will reasonably compensate hin
for such injuries as he may have alleged and proved as the result of such false
imprisonment including therein such damages as he may have sustained as the
natural and reasonable consequence of any indignity, ridicule and humiliation he
may have alleged and proved as the consequence of the false imprisonment.
Ibid.
31. Exemplary damages cannot be awarded under the evidence.
32. What damages may be awarded. Ibid; Marshall vs. Cleaver, 450.
33. If, at and immediately before the time of the accident, a police officer of
the city, near the suspended wire, gave due and timely warning of the danger to
the driver of the team that was injured, the city would not be liable for injury sustained by reason of the disregard of such warning, or other negligence on the parf of the driver. Colbourn vs. Wilmington, 443.
34. Where the negligent acts of two or more independent persons have btweeen them caused damage to a third, the sufferer is entitled to sue any and all the negligent persons, though he cannot recover in the whole more than his whole damages. Jarrell vs. Wilmington, 454.
35. In an action against a railway company to recover damages for loss and injuries to plaintiff's property, he has the right, under the law of this State, to prove, as a part of his damages, the value of his wife's dress shown to have been destroyed. Dungan vs. Wil. City Ry., 459.
36. If the injury complained of was caused by concurrent negligence of both parties, the plaintiff would be guilty of contributory negligence and could not recover, as the law in such case does not weigh and balance the degree of negligence or responsibility attributable to each party. Ibid.
37. In an action against a railway company to recover damages for loss and injuries to plaintiff's property, he has the right, under the law of this State, to prove, as a part of his damages, the value of his wife's dress showu to have been destroyed. Ibid.
38. An action cannot be maintained in this State by a father for damages accruing to him by reason of the death of his son, and the consequent loss of services. Kennedy vs. Del. Cotton Co., 477.
39. Action for damages by widow for death of husband. Szymanski vs. Blumenthal, 511.
See COMMON CARRIER; EXEMPLARY DAMAGES; FALSE IMPRISONMENT; LIBEL; MASTER AND SERVANT; MEASURE OF DAMAGES; TRESPASS VI ET ARMIS.
I. A razor is a deadly weapon within the meaning and contemplation of the act entitled "An act providing for the punishment of persons carrying concealed deadly weapons." Chap. 548, Vol. 16, Laws of Delaware. State vs. Iannucci,
Where a jury is satisfied, beyond a reasonable doubt, from the facts before them that the accused had upon or about his person a deadly weapon, other than an ordinary pocket knife, put there by him out of view, he is prima facie guilty under the law of carrying concealed a deadly weapon upon or about his person.
3. Malice may be implied from any unlawful act such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. The deliberate selection and use of a deadly weapon has been held to be evidence of malice. State vs. Scott, 538.
4. If death is produced by the use of a deadly weapon, great must be the provocation to reduce homicide from the grade of murder to the grade of manslaughter. And if the killing takes place in a fight between the parties, it must bes hown from all the circumstances of the case that it was perpetrated in a transport of passion or in the heat of blood, and upon sufficient provocation, without malice and without time for reflection or for the passions to cool. State vs. Har mon, 580.
See CARRYING CONCEALED DEADLY WEAPONS.
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