Austin v. Millspaugh

delivered the opinion of the court.

The court below erred in refusing to give instruction No. 5 *361for the plaintiff as asked, which instruction is in the following words: “The court charges the jury that, in ease they shall find a verdict for the plaintiff, then they should assess such damages in his favor as will, in their judgment, under all the testimony in the case, fully, fairly, and reasonably compensate him for the loss sustained; that they should not value plaintiff’s property, so lost as testified about, at any fanciful or unreasonable price, nor, on the other hand, should they consider it of little or no value, because of its want of market price; but they should, as nearly as they can, from the testimony in the case, determine the reasonable, just, and fair value of the property to the plaintiff, at the time it was delivered to the defendant’s porter, at the depot.”

It also erred in granting to the defendant the following instruction:. “The court charges the jury that, if they believe from the evidence that plaintiff’s plans and specifications had no market value, and that he had put his services and other expenses into their preparation without reference to any particular job, and upon the mere chance or possibility that he might have need or use for them in soliciting work in the future, but that there has been no demand for said plans and specifications, and plaintiff had no particular use for them at the time of their loss, and was for some time after their loss not engaged in business for himself, but employed as a draughtsman by others at a salary, and there was no use or demand for them in that capacity, plaintiff can only recover nominal damages for the loss of said plans.”

The true principal was definitely settled in the case of L. & N. Ry. Co. v. Stewart, 78 Miss., 600, 29 South., 394. See also, Green v. Railroad Co., 128 Mass., 221, 35 Am. Rep., 370; Mather v. Am. Express Co., 138 Mass., 55, 52 Am. Rep., 258; Southern Express Company v. Owen, 41 South., 752, from the supreme court of Alabama, where the court said: “Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruc*362tion or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be that no rule which will be absolutely certain to do justice between the parties can be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely. Where the article or thing is so unusual in its character that market value cannot be predicated of it, its value or plaintiff’s damages must be ascertained in some other rational way and from such elements as are attainable.....Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into constituent elements of the cost to the plaintiff in producing it.” See, also, as sustaining this view, Howard College v. Turner, 71 Ala., 429, 46 Am. Rep., 326; Cooney v. Pullman Car Co., 121 Ala., 368, 25 South., 712, 53 L. R. A., 690; Jonas v. Noel, 98 Tenn., 440, 39 S. W., 724, 36 L. R. A., 862; Masterton v. Mayer Brookley, 7 Hill (N. Y.), 61, 42 Am. Dec., 38; Sullivan v. Lear, 23 Fla., 463, 2 South., 846, 11 Am. St. Rep., 388; 3 Southerland on Damages (3d ed.), sec. 919.

Reversed and remanded.