Gilbert v. Kennedy’s Empirical Analysis

Citation profile

5 federal appellate · 2 district · 39 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 51 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “‘ ‘ There being practically no market value for pasturage when there was none in the market, that element of certainty is wanting, even as to those cattle which were removed from the Pitcher farm to the home farm of the plaintiff for pasturage; and, as it could not apply to the others at all, and there being no other element of certainty by which the damages can be accurately measured, resort must be had to such principle or basis of calculation applicable to the circumstances of the case (if any be discoverable) as will be most likely to approximate certainty, and which may serve as a guide in making the most probable estimate of which the nature of the case will admit; and, though it may be less certain as a scale of measurement, yet if the principle be just in itself, and more likely to approximate the actual damages, it is better than any rule, however certain, which must certainly produce injustice, by excluding a large portion of the damages actually sustained.””

   1 later decision quote this exact passage
   e.g. 227 Mo. App. 175 - Security Store & Manufacturing Co. v. American Railways Express Co.

2. ““ such reasonable and probable estimate, as in the exercise of good sense and sound judgment they shall think will produce adequate compensation. There is no sound reason in- such a case, as there may be, to some extent, in actions upon contract, for throwing any part of the loss upon the injured party, which the jury believe from the evidence he has sustained; though the precise amount cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a case, which will relieve the wrong-doer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery. “ Whatever of uncertainty there may be in this mode of estimating damages, is an uncertainty caused by the defendant’s own wrongful act; and justice.and sound public policy alike require that he should bear the risk of the -uncertainty thus produced; ...””

   1 later decision quote this exact passage
   e.g. Story Parchment Co. v. Paterson Parchment Paper Co.

3. ““ To deny the injured party the right to recover any actual damages in such cases, because they are of a nature which cannot be thus certainly measured, would be to enable parties to profit by, and speculate upon, their own wrongs, encourage violence and invite depredation.. Such is not, and cannot be the law, though cases may be found where courts have laid down artificial and arbitrary .rules which have produced such a result.””

   1 later decision quote this exact passage
   e.g. Story Parchment Co. v. Paterson Parchment Paper Co.