
    JOSEFA ZUZUARREGUI v. M. MARTINEZ & COMPANY.
    San Juan,
    Law,
    No. 148.
    1. Damages implied by law from wrongful acts need not be specially averred.
    2. Damages may be recovered in Federal courts for injury to the feelings, in addition to actual and compensatory damages.
    
      3. Affidavits in support of motion for a new trial, when not sufficient.
    Order filed January 26, 1905.
    
      Mr. Salvador Mestre, attorney for plaintiff.
    
      Messrs. Horton & Cornwell, attorneys for defendants.
   McEjeNNa, Judge,

delivered the following opinion:

And now, to wit, this 26th day of January, 1905, after very careful and patient hearing of the oral arguments of counsel on the motion for a new trial in this case, and an argument on the law and facts involved, lasting.nearly an entire day, and on careful exaniination of briefs filed and notes of testimony, we are compelled to affirm the findings of fact and conclusions of law heretofore made in this case.

Nothing was advanced at .the argument to justify the flagrant-violation of law by defendant in unlawfully invading, with a display of force, the premises of plaintiff, and, without her consent, carrying off contents of store. The arbitrary • determination of defendants to disregard the law of the land, as shown by the evidence at trial, as well as their reckless disregard of rights of plaintiff, also clearly proven, was ignored on the argument, although, as stated in findings, constituting the principal ground of recovery.

The most persistent point on the argument for a new trial urged by the defendants was the alleged error of the court in allowing special damages not averred in the declaration, and also in allowing damages for indignity and mental sufferings and humiliation of plaintiff, the result of the wrongdoing of d<> fendants, in addition to actual damages as proven.

No demurrer having been'filed to the declaration in this case, the trial proceeded on general issue. The question of sufficiency of declaration was ruled upon by the court at close, of testimony, on the motion of defendants to quash for want of jurisdiction, as well as on motion of defendants for peremptory instructions. We discover no reason to change the rulings then made, and followed in the findings and conclusions.

The authorities are uniform that damages implied by law from wrongful acts need not be specially averred in the declaration, and are therefore recoverable without special averments. The law is also well settled, by decisions in the Federal courts, that damages may be allowed against wrongdoers for sense of insult, shame, indignity, and humiliation suffered, in addition to actual or compensatory damages. It is also equally well settled that damages may be allowed in such cases for fright, shock, or mental suffering as the natural and proximate result of torts or wrongful acts in addition to actual damages proven, and are a proper subject for allowance as compensatory damages.

The ex parie affidavits submitted for new trial are wholly insufficient and are unworthy of serious consideration. The mere averment that they could not be obtained by due diligence before or at the trial is in itself not sufficient to make same admissible, a-11 of said witnesses being present in the district when the case 'was tried, and no reason being given why, with due diligence, they could not have been secured. Ex parte, affidavits are not in themselves proper grounds for allowance of new trial. If the rule that they were sufficient obtained, scarcely any verdicts would stand; for nothing is easier after trial than to secure contradictory ex parte affidavits. Had the matter contained in these ex parte affidavits been admissible'on consideration for new trial, proper rules and practice would require that an examiner to take the newly discovered testimony be appointed, and due notice of time and place of taking such testimony should be given the opposite party, and the opportunity to cross-examine witnesses, all of which was omitted in the batch of ex parie affidavits submitted with motion for new trial. , 1

Oh the argument for a new trial it appeared, and was admitted by counsel for plaintiff, that error was made in awarding $400 as the value of the stock illegally taken by defendants and their agents, and that the true amount should be but $300, as averred in the declaration, and that of this amount, of $300 there was upwards of $100 left in the store and not removed by defendants, but which was alleged at argument for. npw trial to have been subsequently stolen. The defendants cannot be held liable for the goods stolen. This amount is therefore a credit rebate of $290 on tbe original finding of $400 for value of tbe goods removed.

At tbe argument it also appeared, and was admitted by plaintiff, that tbe allowance of $400 for loss of profits was an error, and was also in excess of tbe actual profits, and that a fair allowance for loss of profits would not exceed $200. Consequently a credit of $200 for tbe error in damages sustained by loss of profits of business should be credited on that finding of $400 for loss of profits in tbe original verdict in this case.

It is. therefore accordingly ordered that if plaintiff or her attorney shall, within,five days from service of written notice by tbe clerk of this court, sign stipulation accompanying this order, agreeing to a reduction of findings and verdict heretofore entered in this case to tbe sum of $1,400, tbe motion for a new trial will be refused, and, in event of said plaintiff or counsel refusing to sign said stipulation, consenting to accept reduction of said findings and verdict to $1,400, within tbe five days after service of notice, it is ordered that tbe motion for a new trial be granted.  