CAMDEN &: S. RY. CO. V. BURR.
the goods tortiously taken have been otherwise than by sale converted to the use of the taker, so as to lose their identity. We fail to see any sound reason why the contract to pay the owner should be implied in the one case, and not in the other. Either the owner should be allowed to have back his goods, or to recover the value; and there is no good reason why damages for the unlawful taking may not be waived. In our opinion, the law is correctly stated in 2 Green I. Ev. § 108, as follows:
"And if one commit a tort on the goods of another, by which he gains a pecuniary benefit, as If he wrongfully takes the goods, and sells them, or otherwise applies them to his own use, the owner may waive the tort, and charge him In assumpsit on the common counts, as for goods sold or money receIved, which he will not be permitted to gainsay."
And particularly ought this rule to govern where, as in Georgia, the Code of 1882 provides:
"§ 3332 (3256). (3245.) Suits, How Commenced. Ordinary suits In the superior court shall be by petition to the court, signed by Pte plaintiff or his counsel, plainly, fully and distinctly setting forth his charge or demand, and no want of form shall be cause of delay if this article Is substantially complied with."
The case-made conclusively shows that the ties sued for in this case were taken by the plaintiff in error, applied to its own use, and put beyond the reach of the owners. The verdict of the jury and the judgment of the court condemning the plaintiff in error to pay actual value for the same does substantial justice, and the plaintiff in error was neither surprised nor prejudiced thereby.. Judgment affirmed.
CAMDEN & S. RY. CO. v. BURR. CIrcuit Court of Appeals, Third Circuit. December 16, 1898.) No.7, September Term.
The fact that terms used by a judge In charging a jury may not have been so nicely chosen as to defy criticism is not ground for reversal, when the charge, taken as a whole, does not appear to have been misleading.
In Error to the Circuit Court of the United States for the District of New Jersey. E. A. Armstrong and D. J. Pancoast, for plaintiff in error. Howard Carrow, for defendant in error. Before ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge. DALLAS, .circuit Judge. This was an action in the circuit court for the district of New Jersey, to recover damages for personal injury sustained by the defendant in error in a collision which occurred between two cars of the plaintiff in error, who was the defendant below. The several errors assigned need not be separately considered. The points insisted upon are-First, that the learned judge in instructing the jury used the word "discretion" where the word "judgment" should have
,jury,was led to believe that the plainloss of earnings, whereas the ,true measure in this, regard is loss ot: e8;l':p.in.g ·power. These ,ebjections are both, in. our'Qpipion,criticaI merely, and not substantial. . The terms employed in c4arging It jury cannot reasonably be expected to be so nicely chosen as to defy censorious examination. The criterion by which,.they are,to be judged is: practical, not pedanticiand no part of a charge can be said to be erroneous which, when taken in connection with the wholeo.f it, does not apPea;r to have been misleading. In the present case the: courtsnid, "The basis ofa verdict for damages,'gehtlemen, iscotnpensatiOni" and, further on, that its amount "must rest mainly in the qi$cretion of the jury." . Now, that the word "djscretion",was here used ali'lbeing equivalent to the word "judgment," 'and to "judgment founded 'tipon evidence," aIld that it must have been so understood by thejury, we do Il;ot doubt.'· 'Ple tenor of any ofher "understandingj ,and, in the same the eriijl'e charge conneclio;l:}, lit was sai\l\!INoamonnt of sympathy is it their [the,ju.:t1Qfs']pl'ovince to ,expend o,n the plaintiff; but as between the plainillf and defendant, according to the evidence, in their own.sound to .the bes,t of their judgment, sum as will, i:n th,j,!j 19pblipn, compenli'late for the injuries which she has sllStj,tine4,;aDd whicq, qy the prQQf,. the jurorsaresatiljlfied she will sustajq,hY reason of 14e is the subjectrmatter of this !tis not possible,. we think, that the jury could have attributed to this language anYD/.ealling other than:tbat it was their duty to assess the damages according to their best judgment founded upon the evidence; and, so understood, the instruction' given was unquestionably correct. It is true that in a ease of it isihe loss of earning power, and not possible or probable specific earnings, which is to be considered hi estimating damages:; !but, again, it iscIeat that the jury could not have been led Itstray by the occurrence of the phrase "loss of earnings" in the charge. !twas at several points made clear that wh,at iJitended was loss ofearnipg power, and especially in this defining Iiltate,ment: ''Now, whatever she has lost in earnings-earning power-.,-from the day of accident, in '96, to the present time, is another item which you will take illto consideration in liJ,ssessing the damages." . . We are fully satisfied. that the jury were not misled with respect to either of the matters' complained of, and therefore the iudlmlent of the circuit court is affirmed.
McKOWNv. MANHATTAN LIFE INS. CO.
(CirCUit Court, W. D. Pennsylvania.
SBT-OFF-.:MUI,fU4LITY OF DEMANDS-ACTION ON
June 9, 1898.)
In an action by an executrix on a policy of life insurance, payable by its termS to the "executors or administrators" of her testator, the defendant cannot set off a judgment, recovered against the insured in his Hfetime, for want of mutuality in the demands; the insured, who was defend-