facts which constitute the very gist of the action. General damages is a conclusion of law to be drawn from facts, averred and proven, which constitute the cause of action. The jury, of course, determine the amount, but they do so from proof of other facts, and not because the declaration lays any particular sum. Says Chitty, in Volume 1 (16th Ed.) p. 411: "General damages are such as the law implies or presumes to have accrued from the wrong complained of." And again, on the same page, he says: "It does not appear necessary to state the formal description of damages in the declaration, because presumptions of law are not in general to be pleaded or averred as facts." See, also, Hogg's Pl. § 133. It is well settled that, after verdict, reference may be made to the writ to supply the failure to lay damages in the declaration. Hook v. Turnbull, 6 Call. (Va.) 85; Digges v. Norris, 3 Hen. & M. (Va.) 268; Palmer et al. v. Mill, 3 Hen. & M. (Va.) 502. See, also, opinion of Judge Brannon in Clarke v. Ohio River R. Co., 39 W. Va. 739, 20 S. E. 696. In Palmer et al. v. Mill, supra, the verdict was for more damages than was laid in the declaration, but less than the writ demanded, and the court read the writ to support the verdict. Now, if after verdict the writ is properly regarded as a part of the record, to support the verdict, why may it not be so regarded on demurrer to sustain the declaration? Is not the laying of damages in the declaration mere formal matter? Is it not a statement of a legal conclusion, and not, therefore, an indispensable averment? Our conclusion is that it is sufficient if it appear in the declaration in any form. It can serve to give defendant no information not furnished by the writ itself, and need not be stated in the form of an averment. The cases of Lomax v. Hord, 3 Hen. & M. (Va.) 272, Moore's Adm'r v. Dawney, 3 Hen. & M. (Va.) 127, Donaghe v. Rankin, 4 Munf. (Va.) 261, and Spiker v. Bohrer, 37 W. Va. 258, 16 S. E. 575, to which our attention has been called, do not govern this case. The decisions on those cases involved the question of pleading as it relates to matters of fact constituting the very gist of the action, while the present case involves only the manner of pleading damage, a conclusion of law, and not a fact essential to the cause of action. The declaration is also good in other respects. It avers facts which, if true, give plaintiff a right of action.

Plaintiff's theory of her case is that defendant, who was in the plumbing business, contracted with one Pickney to put the plumbing in a certain house which Pickney was having built in the town. of Montgomery, and also to lay the pipe connecting the same with the water main in the street; that a ditch to receive the pipe was

dug across one of the public streets, by defendant's employee, acting under express or implied directions, and was left open, with no sign of warning for a number of days; and that plaintiff, without negligence, was going along the street in the nighttime, and fell into it and was injured. It is sufficient to say that plaintiff's evidence supports this theory, and, notwithstanding the testimony of defendant and some of his witnesses conflict with portions of plaintiff's evidence, the jury are the judges as to the credibility of witnesses and the weight and importance to be given to their testimony, and the law justified their verdict.

It is well-settled law that if one is injured as the direct result of the negligence of a servant or agent in the performance of an act within the line of his duty, and the scope of his employment, the master or principal is liable. Defendant did the work for Pickney by con tract which included the digging of the ditch. Pickney paid defendant for the entire job, and defendant paid Brown for digging the ditch. From these facts the jury had the right to infer that Brown dug the ditch under the implied directions of defendant. Brown had been working for defendant by the day for a number of years, and had done similar work without express directions from defendant, when he knew it was to be done. That Pickney may have told Brown where to dig the ditch, in order to connect the water pipe with the main in the street, cannot affect the case. Brown was not the servant of Pickney. Pickney did not employ him, and, of course, could not discharge him, and he had no right to control his actions. These are the principal tests to determine whether or not the relation of master and servant exists. Defendant did employ Brown, paid him for the work, had the power to direct his actions, and could have discharged him.

A number of instructions were given for plaintiff which are objected to. It is useless to discuss them seriatim, as their propriety is shown by the law which we have above said is applicable to the case Particular objection is made to instruction No. 10, which deals with the facts which the jury may consider in determining the quantum of damages. It is insisted that it is erroneous, because it assumes that plaintiff is entitled to recover damages in any event. This objection would be well founded, if the jury had not been otherwise instructed concerning the facts necessary to be proven in order to give plaintiff a right to recover at all. No. 10 deals with the single matter of the measure of damages, and it is not proper to segregate it from other instructions, and read it as if it stood alone. Plaintiff's No. 6 clearly propounds to the jury the state of facts which

it is necessary that they must believe to be supported by evidence before they can find a verdict in favor of the plaintiff for any amount. The two instructions, 6 and 10, should be read together. So read, they correctly state the law applicable to the case.

The court refused to give instructions Nos. 3, 4 and 5, for defendant, and that ruling by the court is the subject of complaint. Those instructions would have told the jury that Pickney was liable, because he owned the property for the improvement of which the ditch was dug; that it was Pickney's duty to keep the ditch covered, or guarded. That is not the law in this case. As the towu was sup. plied with a water system, and one of the water mains ran through the street opposite the house, it must be presumed that the opening of a ditch in the street to connect the piping from the house with the water main was the exercise of a lawful right. The execution of a lawful right in a reasonably safe and proper manuer cannot be regarded as a nuisance. The digging of the ditch in itself was not an unlawful act, and therefore the opening of the ditch was not per se a nuisance.

If the work is lawful, and injury results from the negligent manner of its performance, liability rests upon him who has charge of the work and the right to direct the manner in which it shall be performed. That person in the present case the jury must have believed, as they had a right to do from the evidence, was defendant. His servant was negligent in not keeping the ditch covered, or in not keeping the public warned of its danger by some proper signal, and the law attributes his negligence to his employer. That he cov ered the ditch with boards, as soon as he finished digging it, is not sufficient to relieve from liability. He should have kept it covered, or properly guarded, until the earth was replaced. It was not cov ered or guarded when plaintiff fell into it.

There is an error in the amount of the judgment. It exceeds the verdict by $25. That being below the appealable amount, it does not call for a reversal, but the error appearing by the record, and this court having jurisdiction of the cause of writ of error granted upon other assignments of error we will correct the judgment so as to make it conform to the verdict, and it will then read $850, instead of $875. The statute authorizing the correction of such error by the court below upon application to it does not deny jurisdiction to this court to correct it, when the cause is properly before us on other assignments of error.

As so modified and corrected, the judgment will be affirmed.

POFFENBARGER, J. (dissenting). Regarding the declaration as fatally defective on demurrer, I dissent. What is treated as an ad damnum clause is plainly only an introductory recital, descriptive of the action and the parties. It is not an averment of damages at all, and does not purport to be.

As damages constitute the very gist of the action in trespass on the case, I think the ad damnum clause is indispensable, unless waived by a failure to demur. It is like the promise in assumpsit. Although the declaration states facts from which the law raises a promise, the allegation of the promise cannot be omitted. Grover v. Ohio River R. Co., 53 W. Va. 103, 44 S. E. 147, 4 Min. Inst. 697. "It is true that in evidence the law in many cases implies from certain facts that a promise has been made; but in pleading the supposed promise itself should be alleged." 1 Chitty, Pl. (11th Am. Ed.) 301. Similarly, though damages will be implied from certain facts as matter of evidence, it must be alleged as a fact in pleading.

WOOD v. CUNARD STEAMSHIP CO. LTD.

[U. S. CIRCUIT COURT OF APPEALS, SECOND CIRCUIT, S. D. NEW YORK, DECEMBER

12, 1911.]

192 Fed. 293.

1. Carriers-Loss of Baggage-Limitation of Liability-Evidence.

On a libel by one who had been a passenger on board a steamship for the loss of a trunk, evidence held to be insufficient to establish an agreement limiting the liability of the carrier to £5 (five pounds) sterling.

The manuscript of a manual on Greek grammar, which one who had been a passenger on board a steamship had prepared and of which he had no copy, and which he used in his work as a teacher, contained in a trunk with other property, may be considered as one of the tools of his trade and, as such, a part of his baggage, for which the steamship company is liable if negligently lost.

On libel against a steamship company for the negligent loss of a passenger's runk containing a manuscript of a manual on Greek grammar, evidence held to how that the manuscript was not worth more than $500.

Appeal by libelant from a judgment of the District Court of the United States for the Southern District of New York, rendered in an action to recover damages for the alleged negligent loss of baggage. Modified and affirmed.

For appellant-Louis Marshall and Abraham Benedict.

For respondent-Lucius H. Beers and Allan B. A. Bradley..

Before LACOMBE, COXE and NOYES, CIRCUIT JUDGES.