MEASURE OF DAMAGES. A rule or method by which the damage sustained is to be estimated or measured. Sedg. Meas. Dam. § 29.
It is the duty of the judge to explain to the jurors, as a matter of law, the footing Upon which they should calculate their dam ages, if their verdict is for the plaintiff. This footing or scheme is called the "meas ure of damages." Pollock, Torts 27.
'The defendant is to make compensation for all the natural and proximate conse quences of his wrong, but not for secondary or remote consequences. There are cases in which this principle of compensation is de parted from ; as, where exemplary damages are awarded, or double or treble damages are allowed by statute. But, in general, the law seeks to give compensation.
Value is in most cases the measure of compensation and it is a fundamental prin ciple that market value is resorted to not as a test, but only as an aid in getting at the real value, the latter being the true measure of a recovery, whether it be property, time, labor, or service which were affected by the contract or tort which is the subject matter of the action ; 1 Sedg. Meas. Dam. §§ 242, 243.
The compensation awarded may be based upon, (1) pecuniary loss, direct or indirect ; (2) physical pain ; (3) mental suffering ; to which have been added the value of the time required for the enforcement of the plaintiff's rights and his actual expenses in curred in so doing. There may be also in the case of injuries resulting from design, malice; or fraud, the sense of wrong or in jury to one's feelings which is in some cases taken into consideration as a proper subject of compensation. See Hale, Dam. 86 ; 1 Sedg. Meas. Dam. § 37. The injuries for which compensation may be recovered are stated generally to include all those which affect any right protected by the common law where they are the direct result of ac tionable wrong. They may be to property, family relations, reputation, or the person, —whether affecting the body or mind or per sonal freedom of action ; id. § 39.
Pecuniary compensation includes every kind of damage which can be measured by money value ; Baltimore & 0. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052. Such loss is almost
always an element to be considered and in most cases the primary one ; Hale, Dam. 87. So Important is the idea of compensation that it is laid down as the fundamental rule of the measure of damages that the recovery must be "by way of compensation for loss and not to punish the wrong doer ;" 8 Eng. Rul. Cas. 360. The test is compensation, not restitution, and beyond this it is rarely pos sible to lay down any general rule ; Pollock, Torts 180. This idea of compensation which lies at the root of the subject, may be illus trated by cases of the most diverse charac ter. The measure of damages for failing to fulfil a covenant which the other party per forms, is what 'it cost to fulfil it; Appeal of McDowell, 123 Pa. 381, 16 Atl. 753 ; in a tres pass for an injury to the realty, by the inad vertent removal of part of coal, it is its value as part of the realty, and not as a chattel after its removal; Warrior Coal & Coke Co. v. Mining Co., 112 Ala. 624, 20 South. 918 ; for illegal diversion of water by an upper riparian owner, it is the cost of enough wa ter to take the place of that unlawfully di verted ; Standard Plate Glass Co. v. Water Co., .5 Pa. Super. Ct. 563; for a breach of contract to return borrowed stock, it is the price of the stock at the time of the refusal to return it ; Jennings v. Loeffler, 184 Pa. 318, 39 Atl. 214. In an action of replevin for wrongful detention, the value of its use dur ing detention may be recovered, although or dinarily the damages would be the interest on its value while detained; Werner v. Gra ley, 54 Kan. 383, 38 Pac. 482. Where an at torney undertakes for a client a search of records for liens and overlooks a lien, his client, a mortgagee, who has thereupon loan ed money on what was supposed to be a first lien upon real estate, may recover from the attorney the difference in value between a first lien and the lien which the client got; Lawall v. Groman, 180 Pa. 532, 37 Atl. 98, 57 Am. St. Rep. 662. The amount stolen from a safe, warranted burglar proof, may be recovered in an action for breach of the warranty.; Deane v. Stove Co., 69 Ill. App. 106.