Pastorius v. Fisher

Gibson, C. J. The principal point was determined in Alexan- ■ derv. Kerr, during the last term at Pittsburg, where it was held, that the law implies damage from flooding the ground of another, though it be in the least possible degree, and without actual prejudice; and the same principle was ruled at Sunbury, the term preceding, in a case the name of which is not recollected. But where the law implies the injury, it also implies the lowest damages, except in cases of personal injury, where damages are given, not to compensate, but to punish. Here, however, it is said, the plaintiff undertook to prove special damage, and, therefore, staked his case on the event. [29] But, surely an attempt to prove an injury beyond what the law implies, is not, necessarily, a relinquishment of damages for every thing short of the whole case. Where the plaintiff goes for special damage, he must lay it; else he shall not give evidence of it. But the converse of the rule does, not hold—that having laid it, he must prove it or fail altogether. It would be neither reasonable nor just to compel him to elect between real and nominal damages; or to refuse compensation as far as a substantial cause of action has been proved. The action may be brought to try the right, and the verdict, being conclusive, would stand in the way of a recovery for .a substantial injury, if any were suffered afterwards. If was error, therefore, to charge against the plaintiff’s right to nominal damages. Judgment reversed, and a venire facias de novo awarded.