Bishop & Parsons v. Mayor of Macon , 7 Ga. 200 ( 1849 )

By the Court. —

Lumpkin, J.

delivering the opinion.

I shall not undertake to discuss the many grave questions which naturally arise upon this record. I shall assume, however,

[1.] 1st; That it is now well settled, that in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity, the private property of an, individual may be lawfully taken, and used or destroyed for th'e relief, protection or safety of the many. And in all such cases — while the agents of the public who officiate are protected from individual liability, the sufferers are nevertheless entitled, under the Constitution, to just compensation from the public for the loss. If the public necessity exists, and of this the constituted authorities are to judge, no trespass or wrong has been committed. 17 Wend. 285. 18 lb. 126.

[2.] 2dly. It is equally evident on the other hand, that if the private property of an individual, the whole or a part of which might otherwise, have been saved to the owner, is taken or destroyed for the benefit of the public, or of the inhabitants of a particular county, city, town, or other smaller section of the community, those for whose supposed benefit the sacrifice was made, ought, in equity and justice, to make good the loss which the individual has sustained for the common advantage of all. And there is an implied assumpsit or undertaking on the part of the public, that adequate remuneration shall be made. lb.

[3.] 3dly. Where the same extent of loss or injury would have been sustained by the individual, as the necessary consequence of the fire or other public calamity, if his property had not been thus taken or destroyed for the protection of others, he would hardly seem entitled to compensation. For in such case, although others have been benefited, he has in fact sustained no damage. lb.

But passing by these questions, I shall confine myself strictly, and within the narrowest limits, to the single point in the case.

It seems that, during the fire which occurred in the city of Macon, on the night of the 20th of August, 1844, the plaintiffs were engaged, with their servants and friends, in removing the goods from the tenement which they occupied. While thus employed, and the fire having communicated to the building in the immediate neighborhood, several kegs of powder were placed, by order of the City authorities, in their cellar, and trains laid to explode them. This fact being, made known, all the persons who had been previously engaged in removing plaintiffs’ goods, instantly desisted, and retired from the premises. Sometime elapsed before the fire reached the adjoining edifice; and it was from 30 to 60 minutes before the tenement was blown up. The plaintiffs had some fourteen or fifteen hundred dollars worth of merchandize in the store at the time, and brought their action to recover its value — a bill of particulars being annexed to their writ — upon the ground, that but for this premature movement on the part of the Mayor and Council, they could have saved all their property. The proof sustained the declaration in every particular; but the Jury returned a verdict of five dollars only. A new trial was asked, on the ground that the finding was contrary to evidence, and refused for the reason “ that this was not such a case of damages as would authorize the Court to disturb the verdict.”

Was the presiding Judge right in this opinion ?

[4.] It is certainly true that, in personal torts and actions, sounding purely in damages, the Courts will usually refuse new trials for smallness of damages, it being the strict and peculiar province of the Jury in such cases to estimate the injury. To entitle the applicant to succeed in this class of cases, the Jury must clearly have manifested an abuse of their power.

[5.] But even in personal torts, where the finding is grossly inadequate, and the compensation given entirely disproportioned to the injury proven to have been sustained, the Court will interfere and grant relief.

The reason why the Court will not disturb tire verdict of the Jury in batteries, libels, crim. cons, malicious prosecutions, and the like, is, that there is in fact no criterion of damages to regulate the verdict.

[6.] But where a reasonably certain measure of damages is afforded, no such latitude is allowed the Jury; and the Court will look into the circumstances, and grant or refuse a new trial, or correct the verdict according to the justice of the case.

Now, this was an action on the case, in the nature of an indebitatus assumpsit, for the value of the property of the plaintiffs, destroyed by order of the City authorities. Here was an exact measure of damages for the Jury to go by. The proof, as it appears in the bill of exceptions, as to the goods consumed and their value, was full and explicit, and uncontradicted. And yet the verdict, instead of being for $1,378*14, was for $5. It was manifestly, therefore, against evidence, and should have been set aside by the Court. From mistake, or some other cause, they found a much less amount than in justice they ought. The plaintiffs were entitled to a re-examination of the matter.

A new trial is consequently awarded.