to recover for the loss of her earning power over and above her domestic services; (*) and it has been held that she may recover for inability to perform services personal to herself, such as dressing and eating.() A minor cannot recover for loss of time or earning capacity during his minority.() He may recover for his mental and physical suffering, and for any permanent injury.(") But it has been held that a minor without parent or guardian. may recover compensation for medical expenses. (©)

§ 487. Mitigation-Provocation.-One of the simplest forms of mitigatory evidence is always provocation. "In actions for personal wrongs and injuries," says Lord Abinger,' at Nisi Prius, "a defendant who does not deny that the verdict must pass against him, may give evidence to show that the plaintiff in some degree brought the thing upon himself." So, in an action for assault and battery, a libel published by the plaintiff on the defendant may be given in evidence in mitigation of damages, even though it be at the time the subject of a crossaction; but that being so, the defendant ought not to derive much advantage from it in mitigating the damages. The provocation, to entitle it to be given in evidence in mitigation of damages, must be so recent and immediate as to induce a presumption that the violence done was committed under the immediate influence of the feelings and passions excited by it.(') In an action

1 Fraser v. Berkeley, 7 C. & P. 621. • Ibid.

(^) Brooks v. Schwerin, 54 N. Y. 343; Minick v. Troy, 19 Hun 253; Blaechinska v. Howard Mission, etc., 56 Hun 322.

() Johnson v. Baltimore & P. R.R. Co., 17 D. C. (6 Mack.) 232.

(©) Gulf, C. & S. F. Ry. Co. v. Evansich, 63 Tex. 54; Texas & P. Ry. Co. v. Morin, 66 Tex. 225.

() McMil an v. Union P. B. W., 6 Mo. App. 434.

() Forbes v. Loftin, 50 Ala. 396.

(Murphy v. McGrath, 79 Ill. 594; Ireland v. Elliott, 5 la. 478; Turner

§ 487.

MITIGATION.

69

for an assault and battery, where the altercation grew out of a question of veracity between the parties, the defendant was allowed to show that the truth of the matter in dispute was with him, in mitigation of damages.() In Cushman v. Waddell, () which was an action by a schoolmaster against a parent for a severe beating, the court held that no provocation could excuse the defendant from making full compensation for all the injury the plaintiff had suffered by the unlawful attack on his person. But if the jury were satisfied that, without any previous malice towards the plaintiff or any deliberate design to injure him in person or the estimation of the public, he acted in the heat of passion, caused by the appearance and account of his son, it was a circumstance which ought to operate powerfully to reduce the damages to such as were compensatory. Mere words may be proved in mitigation of damages. (°) But words uttered by the plaintiff against the defendant on a former occasion, and repeated to the defendant, are not admissible in mitigation. () The fact that the parties fought by mutual agreement may be shown in mitigation.(*) But in an action by a husband and wife for an assault and battery on the wife, previous misconduct of the husband cannot be received in mitigation. Nor, it seems, where the misconduct consisted in fraudulently obtaining pos

V. Footman, 71 Me. 218; Gaither v. Blowers, 11 Md. 536; Byers v. Horner, 47 Md. 23; Tyson v. Booth, 100 Mass. 258; Martin v. Minor, 50 Miss. 42; Collins v. Todd, 17 Mo. 537; Corning v. Corning, 6 N. Y. 97; Willis v. Forrest, 2 Duer 310; Johnston v. Crawford, 62 N. C. (Phillips) 342.

Provocation does not mitigate compensatory damages: Goldsmith v. Joy, 61 Vt. 488.

(*) Marker v. Miller, 9 Md. 338.

() Bald. 57.

(1) Keyes v. Devlin, 3 E. D. Smith 518.

() Jarvis v. Manlove, 5 Harr. 452.

(*) Barholt v. Wright, 45 Oh. St. 177.

session of premises, and the assault and battery were perpetrated in forcibly turning out the fraudulent occupant, could such fraud be shown in mitigation of any real damages sustained by him. It could be received in mitigation of exemplary damages only, and then only where the fraud or its discovery was very recent and the defendant acted under the consequent excitement of the moment.(*)

§ 488. Bad character of the plaintiff. -The plaintiff's bad character and association with persons of ill repute does not palliate an assault, and cannot mitigate the damages.() Nor can a person guilty of wilful assault and battery show that, from the intemperate habits of the other party, the injury was more aggravated than it would have been upon a person of temperate habits. (©)

$489. Criminal conviction.-Nor can the defendant in a civil action for an assault and battery be permitted to prove in mitigation of damages that he had been indicted, convicted, and fined for the same offense. An indictment is intended as a vindication of public justice; an action is brought for compensation for private injury. The object of the two proceedings is entirely distinct, and the one should not interfere with the course of the other.(") So the fact that only a nominal fine has been paid in a criminal action will not increase damages.(*)

(*) Jacobs v. Hoover, 9 Minn. 204.

() Bruce v. Priest, 5 All. 100; Johnson v. Wells, 6 Nev. 224; Corning v. Corning, 6 N. Y. 97. But contra, Abbot v. Tolliver, 71 Wis. 64, in which case Cole, C. J., said (at p. 70): "The fact of chastity, as well as other personal virtues and business qualifications, would be proper matters for a jury to consider in making up their verdict as to what damages should be given as a compensation for the injury."

() Littlehale v. Dix, 11 Cush. 364.

) Lucas v. Flinn, 35 Ia. 9; Wheatley v. Thorn, 23 Miss. 62; Wolff v. Cohen, 8 Rich. L. 144.

(*) Honaker v. Howe, 19 Gratt. 50.

$490, 491.

AVOIDABLE CONSEQUENCES.

71

§ 490. Circumstances of the parties.-The amount of damages is not affected by the wealth or poverty of the plaintiff. (*) Nor can he augment damages by proving that he has a wife and several small children.() In Illinois Central R.R. Co. v. Nelson, () an action for being wrongfully put off a train, it was held error to charge the jury that they were "not confined to the same amount of damages or the same rules as if the suit was between individuals, as the public have an interest in such cases which may be considered and looked to in assessing the damages." In Toledo, Wabash & W. Ry. Co. v. Smith () it was held to be error to tell the jury that in assessing damages against a company and a conductor, for expelling the plaintiff from the cars, they could consider the ability of the company to pay.

§ 491. Avoidable consequences.--Where the plaintiff was injured by a train, but did not employ a physician for a week after the injury, it was held that she was bound to take ordinary care to make the damages as small as possible, and if she did not, she could not recover for the damages resulting.()

(*) Barbour Co. v. Horn, 48 Ala. 566; Shea v. R.R. Co., 44 Cal. 414; Malone v. Hawley, 46 Cal. 409; Vosberg v. Putney, 47 N. W. Rep. 99 (Wis.), (wealth of father of minor plaintiff). But contra, Cochran v. Ammon, 16 Ill. 316, where Skinner, J., said: "The pain and suffering may be much greater where, from his pecuniary condition, the husband is unable to furnish medical aid, remedies, apartments, and nursing, such as ample means would afford," and therefore the pecuniary condition of the husband "tended to show the extent of the injury to the wife." In accordance with this case is Eltringham v. Earhart, 67 Miss. 488.

(*) Chicago v. O'Brennan, 65 Ill. 160; Pittsburg, F. W. & C. Ry. Co. v. Powers, 74 Ill. 341; Stockton v. Frey, 4 Gill 406; Louisville & N. R.R. Co. v. Gower, 85 Tenn. 465.

(*) 59 Ill. 110.

(d) 57 Ill. 517.

(*) Allender v. Chicago, R. I. & P. R.R. Co., 37 Ia. 264.

CHAPTER XIV.

MEASURE OF DAMAGES IN ACTIONS FOR THE CONVERSION OF PERSONAL PROPERTY.

§ 492. Forms of action.-* Trover is the form of action prescribed by the common law, where damages are demanded for specific personal property which has been wrongfully appropriated, or, in more technical language, converted to the use of any other than its rightful owner. It was often brought at the option of the plaintiff in cases where assumpsit, and in others where trespass, or replevin, would lie. The consequences flowing from the election of assumpsit are well stated in the language of Lord Ellenborough, C. J. :

“In bringing an action for money had and received, instead of trover, the plaintiff does no more than waive any complaint, with a view to damages, of the tortious act by which the goods were converted into money, and takes to the net proceeds of the sale as the value of the goods,() subject, of course, to all the 1 Barker v. Cory, 15 Oh. 9.

(*) De Clerq v. Mungin, 46 Ill. 112.