(— Ark. —, 969 8. W. 853.) counsel for the defendant are correct. In cases of this sort recovery -punitive when allowed for nuisance. for punitive damages should only be allowed where there is wilful or flagrant violation of the rights of another. Joyce, Nuisances, §§ 258 and 503, and Yazoo & M. Valley R. Co. v. Sanders, 3 L.R.A. (N.S.) 1119, and case note (87 Miss. 607, 40 So. 163). There is nothing in the evidence from which a jury might legally infer that the defendant acted in wilful or flagrant disregard of the rights of the plaintiffs in burning the carcasses. Therefore, for the error in instructing the jury on punitive damages, the judgment must be reversed, and the cause will be remanded for a new trial. ANNOTATION. Nuisance by manner of or circumstances attending performance of duty enjoined by law. A nuisance is anything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. 20 R. C. L. 380. This note deals only with the commission of a nuisance by the manner of the performance of a duty required by law. It does not deal with acts which of themselves are nuisances and may be required by law; nor with acts merely authorized by law; nor with the construction of public works or the performance of duties by public officers. There are not many cases dealing with this precise question. However, the maxim "so use your property as not to injure another" seems to be applicable to the performance of an act required by law, and the performance of such an act may, because of circumstances attending or the manner of its performance, amount to a nuisance. New York Continental Jewell Filtration Co. v. Wynkoop (1907) 29 App. D. C. 594, 11 L.R.A. (N. S.) 542, writ of error dismissed in (1907) 207 U. S. 582, 52 L. ed. 350, 28 Sup. Ct. Rep. 259; Cumberland R. Co. v. Bays (1913) 153 Ky. 159, 154 S. W. 929; Jarvis v. St. Louis, I. M. & S. R. Co. (1887) 26 Mo. App. 253. And see the reported case (YATES v. MISSOURI P. R. Co. ante, 1434). Cumberland R. Co. v. Bays (1913) 153 Ky. 159, 154 S. W. 929, was an action against a railroad company for damages for maintaining a pond made foul by depositing carcasses therein. It was held that, while it was the duty of the defendant to dispose of carcasses found on its property, yet the company was liable if its employees were so negligent in doing this that a nuisance was created. The court remanded the case for new trial, and directed that the following instructions should be given to the jury: "If the jury believe from the evidence that the defendant, by its agents or servants, within five years next before the filing of plaintiff's petition, and while plaintiffs were living at the house in question, negligently and carelessly permitted carcasses of dead animals to be thrown in, and remain in, said pond along its right of way near plaintiff's residence, or buried the same in or along the edge of said pond upon its right of way in such a negligent or careless manner as that said carcasses when they came in contact with the earth, or with the mud and water, became and remained foul, unwholesome, or offensive, and that by reason thereof, foul, unwholesome, or offensive odors or stenches arose therefrom, and permeated the air in and around plaintiffs' said dwelling house so as to impair the reasonable use, comfort, and enjoyment by the plaintiffs, or either of them, of their home or lands, you will find for the plaintiffs such sum in damages as you may believe from the evidence they have sustained thereby." Similarly, in Jarvis v. St. Louis, I M. & S. R. Co. (1887) 26 Mo. App. 253, a railroad was held to be liable to a householder for the nuisance resulting from the negligent manner in which its employees buried the carcass of a cow killed on the tracks. The carcass was buried under only a few inches of gravel. It was partially dug up by dogs, and was the source of unwholesome odors which caused considerable annoyance to the plaintiff, whose home was several hundred feet distant. The court held that if the employees of the railroad were negligent in the manner in which they buried a carcass, as required by law, the company was liable for the nuisance caused thereby. New York Continental Jewell Filtration Co. v. Wynkoop (1907) 29 App. D. C. 594, 11 L.R.A. (N. S.) 542, writ of error dismissed in (1907) 207 U. S. 582, 52 L. ed. 350, 28 Sup. Ct. Rep. 259, was a suit for damages because smoke and dust from the defendant's concrete mixers and power plant entered the plaintiff's residence. The defendant was acting as a subcontractor in the construction of a railroad tunnel in the city of Washington, which had been required to be built by act of Congress. The plant which emitted the smoke and dust complained of was situated at the entrance of the tunnel, near the plaintiff's residence. In affirming a judgment for the plaintiff, the court said: "This act gives the railroad authority to construct and maintain the tunnel, with the tracks therein. It gives no authority to the appellant to erect and maintain the plant here complained of, in the rear of appellee's premises. The material produced by the plant of appellant was necessary to be supplied to the railroad company at this point, which the law required the railroad company to construct and maintain. No provision of the law required or sanctioned the location of such a plant at this particular place, nearby many dwelling houses, among which was the home of the appellee; . . . nor do these acts confer any license upon the appellant to use such a plant as it maintained and operated, in disregard of the private rights of others, with immunity for their invasion. The evidence does not show that this location must necessarily be had in order to carry on the work of the appellant. It is true the steam shovel had to be operated at this point, and the earth excavated had to be carried away from this point. The appellant, for its convenience, elected to maintain and operate its power house and all its machinery where it became a nuisance to the neighborhood, which substantially injured the appellee's property and comfort of life." In the reported case (YATES v. MISSOURI P. R. Co. ante, 1434) it appeared that in obedience to a statute requiring the person in possession of the carcass of an animal killed by disease or accident to dispose of it by burning. employees of the defendant railroad burned the carcasses of two cows so close to the homes of the plaintiffs that the odors arising therefrom caused considerable annoyance and discomfort. The court holds that, though the defendant had the duty and right to burn the carcasses on its right of way, it was responsible for the nuisance caused by any negligence of its employees in the manner and choice of place of the cremation. Where there is no negligence in the performance of a duty prescribed by law, there is no liability, even though a nuisance is incidentally caused thereby. Miller v. Long Island R. Co. (1880) 5 Ohio L. J. 634, Fed. Cas. No. 9,580a; Pittsburgh, C. & St. L. R. Co. v. Brown (1879) 67 Ind. 45, 33 Am. Rep. 73; Cumberland R. Co. v. Bays (1913) 153 Ky. 159, 154 S. W. 929. In Cumberland R. Co. v. Bays (Ky.) supra, the court directed that in the new trial the following instructions should be given to the jury: "The defendant had the right, and it was its duty, to bury the carcasses of the dead animals that were killed by the operation of its trains, but in so doing it was its duty to use ordinary care in the manner and place of burying such carcasses, and if you shall believe from the evidence that the defendant, through its said agents and employees, did exercise such care in burying the same, you will find for the defendant, although you may believe from the evidence such foul odors and stenches did escape therefrom." Similarly, in an action to enjoin a railroad from blowing whistles on its locomotives when approaching a crossing, it appeared that a statute prescribed that the whistles should be sounded from the time a train was from 80 to 100 rods from a crossing till it had passed it. The complaint alleged that this blowing of the whistle at a crossing near the plaintiff's home amounted to a nuisance. The court held that, since the railroad did only what the statute required, in the manner required, this could not be enjoined as a nuisance. Pittsburgh, C. & St. L. R. Co. v. Brown (1879) 67 Ind. 45, 33 Am. Rep. 73. Miller v. Long Island R. Co. (Fed.) supra, was an action to restrain the railroad from building a line of tracks on a certain street and erecting gates at a crossing, as it was authorized and required to do, on the ground that their construction and operation would amount to a nuisance. The court denied the injunction, holding that independently of any abuse of the authority given, in the manner of construction and operation, this could not be enjoined as a nuisance. T. A. M. OHIO-WEST VIRGINIA COMPANY v. CHESAPEAKE & OHIO RAILWAY COMPANY. West Virginia Supreme Court of Appeals — September 9, 1924. (W. Va., 124 S. E. 587.) liability. Case, § 4 pleading, § 360 carriers negligent billing 1. Trespass on the case may be maintained against a common carrier for damages sustained by a consignee of a tank car of kerosene resulting from negligence or carelessness on the part of the agents of the carrier in billing the contents of the car as gasolene, and representing the contents to be such when delivered to the consignee; and it is not essential to aver in the declaration that the carrier fraudulently billed the car as containing gasolene, and fraudulently represented it to be such upon delivery. [See note on this question beginning on page 1446.] Damages, § 363-loss of profits. 2. In order to recover for loss of profits as the result of a tort, they must be such as would be expected to follow naturally the wrongful act, and are certain both in their nature and the cause from which they proceed. [See 8 R. C. L. 501, 502; 2 R. C. L. Supp. 621; 4 R. C. L. Supp. 558; 5 R. C. L. Supp. 472.] falsely represented to plaintiff upon action on case 4. To maintain an action in case for public refused further to deal with plaintiff, causing it to lose prospective profits, and impairing the value of its business, whereby it was compelled to sell its entire plant and business at a loss, such items of damage are not the direct, natural, probable, and reasonable consequence of the negligent act of defendant, but are too remote and conjectural, springing from want of confidence in its customers and the general public in the care, skill, and business integrity of plaintiff, and a specific demurrer to these items of damage should be sustained. CERTIFICATION by the Circuit Court for Kanawha County of questions arising upon the overruling of a general demurrer and the sustaining of specific demurrers to the declaration in an action brought to recover damages alleged to have been sustained by defendant's negligently and falsely representing the contents of a car to be gasolene. Affirmed. The facts are stated in the opinion of the court. Messrs. Byrne, Littlepage, & Linn, for plaintiff : Proof as to the loss of profits and the destruction and impairment of the business of plaintiff is competent and proper. State v. Friedman, 74 W. Va. 11, 81 S. E. 830; Chapman v. Kirby, 49 Ill. 211; Chambers v. Spruce Lighting Co. 81 W. Va. 714, 95 S. E. 192; United Fuel Gas Co. v. West Virginia Paving & Pressed Brick Co. 74 W. Va. 484, 82 S. E. 329; Kentucky Heating Co. v. Hood, 133 Ky. 383, 22 L.R.A. (N.S.) 588, 134 Am. St. Rep. 457, 118 S. W. 337; Wallace v. Pennsylvania R. Co. 52 L.R.A. 33, note; Wyant v. Crouse, 127 Mich. 158, 53 L.R.A. 626, 86 N. W. 527; 13 Cyc. pp. 28, 29, 49; Gregory v. Slaughter, 124 Ky. 345, 8 L.R.A. (N.S.) 1228, 124 Am. St. Rep. 402, 99 S. W. 247; Washington & O. D. R. Co. v. Westinghouse Electric & Mfg. Co. 120 Va. 620, 89 S. E. 131, 91 S. E. 646; Smith v. Atlas-Pocahontas Coal Co. 66 W. Va. 599, 66 S. E. 746; 1 Sutherland, Dam. 70; Chesapeake & P. Teleph. Co. v. Carless, 127 Va. 5, 102 S. E. 569; Norfolk & W. R. Co. v. Spears, 110 Va. 113, 65 S. E. 482; Lakeside Paper Co. v. State, 45 App. Div. 112, 60 N. Y. Supp. 1081; Prevost v. Gorrell, 5 W. N. C. 149, Fed. Cas. No. 11,404; Shepard v. Milwaukee Gaslight Co. 15 Wis. 318, 82 Am. Dec. 679; Allison v. Chandler, 11 Mich. 542; Lawson v. Price, 45 Md. 123; Auger v. Cook, 39 U. C. Q. B. 537; Hawthorne v. Siegel, 88 Cal. 159, 22 Am. St. Rep. 291, 25 Pac. 1114; Illinois & St. L. R. & Coal Co. v. Decker, 3 Ill. App. 135; Nightingale v. Scannell, 18 Cal. 315; 8 R. C. L. §§ 53, 191, pp. 492, 649; Hurxthal v. St. Lawrence Boom & Mfg. Co. 65 W. Va. 352, 64 S. E. 355. The act of the railroad company complained of was not merely a breach of contract but strictly a tort. Carr v. Southern R. Co. 12 Ga. App. 830, 79 S. E. 41; Stevens v. Dudley, 56 Vt. 166; Chappell v. Western R. Co. 8 Ga. App. 792, 70 S. E. 208; Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775, 70 S. E. 203; City & Suburban R. Co. v. Brauss, 70 Ga. 376; Head v. Georgia P. R. Co. 79 Ga. 358, 11 Am. St. Rep. 434, 7 S. E. 217, 8 Am. Neg. Cas. 135; Southern Bell Teleph. & Teleg. Co. v. Earle, 118 Ga. 507, 45 S. E. 319; Wolff v. Southern R. Co. 130 Ga. 251, 60 S. E. 569. Messrs. Fitzpatrick, Brown & Davis, for defendant: In an action to recover damages for fraud and deceit, plaintiff must allege that the act was fraudulent, or that the representation was fraudulently made. Loomis v. Jackson, 6 W. Va. 613; Hale v. West Virginia Oil & Oil Land Co. 11 W. Va. 229; Pardee & C. Lumber Co. v. Rose, 87 W. Va. 484, 105 S. E. 792; Interstate Finance Co. v. Schroder, 74 W. Va. 67, 81 S. E. 552; 26 C. J. § 6, p. 1129; Shackett v. Bickford, 74 N. H. 57, 7 L.R.A. (N.S.) 646, 124 Am. St. Rep. 933, 65 Atl. 252. A person is responsible for those (W. Va., 124 S. E. 587.) damages which are the natural and proximate cause of, and which necessarily result from, his wrongful act; but he is not responsible for speculative, remote, or contingent damages. 17 C. J. § 75, p. 741; Peters v. Johnson (Peters v. Jackson) 50 W. Va. 644, 57 L.R.A. 428, 88 Am. St. Rep. 909, 41 S. E. 190; Crain v. Petrie, 6 Hill, 522, 41 Am. Dec. 765; Chicago, B. & Q. R. Co. v. Gelvin, L.R.A.1917C, 983, 151 C. C. A. 90, 238 Fed. 14; Horres v. Berke ley Chemical Co. 57 S. C. 189, 52 L.R.A. 36, 35 S. E. 500; Wallace v. Pennsylvania R. Co. 52 L.R.A. 1, note. Lively, J., delivered the opinion of the court: In June, 1923, plaintiff was operating a service station at Mabscott, Raleigh county, and retailing to its customers gasolene and kerosene. It had installed tanks near a sidetrack of defendant, into which it unloaded, by means of pipes and pumps, the tank cars containing these oils and gases consigned to it. A car consigned to plaintiff by Great Eastern Refining Corporation at Catlettsburg, Kentucky, was set in on the sidetrack by defendant, and the freight bill delivered to plaintiff by defendant described the contents as 8,095 gallons of gasolene, when in fact the contents of the car was about that number of gallons of kerosene, a fact which plaintiff says defendant well knew, but carelessly, wrongfully, falsely, and negligently represented the contents to be gasolene; and the declaration charges that, relying upon the false representation of defendant, it innocently pumped the kerosene in the car into its gasolene tanks situated near the sidetrack, thereby totally destroying 20,000 gallons of gasolene, then in the tanks, worth $3,800, and totally destroying the kerosene so pumped, worth $720. The declaration says the mixture or a part of it was sold to plaintiff's customers for a period of three days before discovery of the mistake, causing them to decline to further deal with plaintiff, which resulted in loss of profits in the months of June, July, and August of that year amounting to $3,600, and as a direct result of the negli38 A.L.R.-91. gent misrepresentation of defendant the value of plaintiff's plant as a going concern was depreciated, and it was compelled to sell and did sell its entire plant in the month of August, 1923, at a loss of $35,000, the plant being worth $60,000 immediately before the admixture of the gasolene and kerosene, and the sale price being $25,000, its true value in the month of August, 1923; that plaintiff expended $3,000 in work and expenses in trying to minimize the damages so caused by defendant. Plaintiff seeks to recover these items of damage by its action of trespass on the case. A general demurrer was overruled; and specific demurrers to that part of the declaration claiming damages for loss of profits in the months of June, July, and August and damages to plaintiff's plant and business were sustained. Upon joint application the court certified its rulings for review. Two questions are presented: (1) Did the court err in overruling the general demurrer to the declaration? (2) Did the court err in sustaining the specific demurrer to that part of the declaration claiming as items of damages loss of profits and injury to plaintiff's plant and business as a going concern? Defendant argues that the genera demurrer should have been sustained, on the ground that the declaration failed to aver that the delivery of the freight bill was a fraudulent act, and the representation that the tank car contained gasolene instead of kerosene was fraudulently made. It insists that the declaration is not based on a breach of the contract of carriage, but is for fraud and deceit or negligent misrepresentation, misrepresentation, and therefore fraud should be specifically and fully charged, citing Loomis v. Jackson, 6 W. Va. 613; Pardee & C. Lumber Co. v. Rose, 87 W. Va. 484, 105 S. E. 792; and Interstate Finance Co. v. Schroder, 74 W. Va. 67, 81 S. E. 552. The declaration is not based on fraud and deceit. The gravamen of the charge is careless |