*

recover because the plaintiff has expressly to the question, 'Number of stoves" answered, "one," while his own evidence shews he had two. He said: "Cookstoves in the list means cookstove; there was just one. It was always standing in the back kitchen. The heating stove stood in the hearth in the big kitchen. It was always there; that is where we kept it. * I bought the box stove at the sale; that was in the spring of 1876. When I bought it, it was not standing in the main kitchen. It was not stood up the day I bought it. When I took possession I set it up on the hearth." But if the plaintiff cannot say that the stove in the big kitchen was not up at the time of the application made, and we think he is not able to say that, it would be useless to grant a new trial upon that issue.

When I refer to the two stoves being up at the time of the application, I am considering them as up, although one of them may, for the mere purpose of cleaning or the like, have been taken down or removed, and that the intention was to replace it at once.

My opinion is, that when he made the application he had the two stoves, but probably the one in the main kitchen for heating was not in use on the 2nd of May, and that what the plaintiff meant when he said he had only one stove, was, that he was using only one stove. think the fifth plea was proved.

:

I

The result is, I think the plaintiff should have a verdict on the issue on the sixth plea, and should retain his verdict on the issue on the fourth plea that the defendants should retain their verdict on the issue on the eleventh plea, and that they should have a new trial on the issues on the third and fifth pleas, if they desire it, but I presume they do not; and that the plaintiff should be allowed to reply fraud or the special facts to the eighth plea, unless the defendants will consent to strike it out of the record, which I think they should do.

As the defendants retain their verdict on the eleventh

plea, it is really immaterial to them how the verdict is upon

the third and fifth pleas, if the cause is to end here; but, if it is not, it may be material to them not to waive their rights as to a finding upon these two pleas. Strictly under the R. S. 0. ch. 50, sec. 283, we have the power to direct the verdict on these two pleas to be entered for the defenfendants, and I think it will be better to do so.

The rules will therefore be disposed of as follows: That the verdict be entered for the defendants on the third, fifth, and eleventh pleas; and for the plaintiff on the fourth and sixth pleas; and the defendants consenting (which no doubt they will do) that the eighth plea and the issue upon it, be struck out. Each party will take out their respective rules accordingly.

GALT, J., concurred.

OSLER, J., took no part in the judgment, having been engaged in the case while at the bar.

Judgment accordingly.

ANDERSON ET AL. V. MATTHEWS ET AL.

Action by husband and wife—Accident-Negligence-New trial—Smallness of damages.

Action by husband and wife for damages sustained by them by the upsetting of a buggy in which they were driving, by reason of its coming in contact with a large stone negligently left by the defendants on the highway. In the first two counts the wife claimed damages for personal injuries sustained by her, and in the last two the husband claimed for the loss of his wife's society and services, and for expenses incurred in medical attendance; also for damage to his personal property. It was proved that the wife was very seriously injured, and that the husband had incurred expenses for medical attendance, and that his buggy was damaged to the extent of $30. The jury found as follows: "Verdict for the plaintiffs on the first and second counts, and $130 damages. No damages on the last two counts."

Held, that although a new trial would not be granted for smallness of damages on the first two counts, yet as there must be a new trial on the last two counts, and, as no additional expense would be incurred thereby, justice would be done by granting a new trial on the whole record, without costs.

THE declaration contained four counts. In the first and second the plaintiff Avalinah H. Anderson claimed damages for injuries caused by the upsetting of a buggy in which she and her husband, the co-plaintiff, were driving.

In the third and fourth the latter sued for the loss of the comfort and services of his wife, expenses incurred in nursing and attendance, and for injuries to the horse and buggy.

The defendants pleaded not guilty.

The cause was tried before Burton, J. A., and a jury, at Simcoe, at the Spring Assizes of 1879,

The evidence clearly established that the accident was caused by the collision of the buggy with a large stone which had been left by the defendants on the highway. The night was dark, but the defendants contended that a lamp, which was burning about thirty-eight feet from the stone, and about nine or ten feet from the middle of the road, afforded sufficient light to have enabled the plaintiffs to avoid driving against the stone, and that they were therefore guilty of contributory negligence.

The injuries caused to the female plaintiff were of a very serious character. As to one of them it was doubtful whether she would ever quite recover from the effects of it, and from the others the recovery would be slow and tedious, at least twelve months.

The other plaintiff sustained no bodily injury, but his buggy was damaged to the extent of $30. He was a medical man, but other medical men had also been called in to attend his wife.

There was no objection to the Judge's charge.

The jury brought in the following verdict: "Verdict for the plaintiffs on the first and second counts, and $130 damages. No damages on the last two counts."

The attention of the jury was called to the apparent absurdity of their finding on the third and fourth counts, but they declined to change it, and it was recorded, without comment or suggestion by either party, that upon such a finding a verdict ought to be entered for the defendants or the plaintiffs, with nominal damages.

In this term, May 20, 1877, McCarthy, Q. C., obtained a rule nisi to set aside the verdict, and for a new trial, on the ground that the damages on the first and second counts were too little, and, if entitled to any damages, the plaintiffs were entitled to much more than the amount at which they were assessed: that no damages were assessed to the plaintiff Jeremiah Anderson for the injuries complained of in the third and fourth counts: that the issue joined on the plea to the third and fourth counts has not been disposed of, there being no finding in favour of one party or the other thereon.

During the same term, June 3, 1879, H. J. Scott shewed cause. As to the verdict on the first and second counts. The Court will not grant a new trial for smallness of damages, even though they may feel that larger damages might have been awarded, unless there has been misdirection by the learned Judge, or misconduct in the ury, or a mistake by them in the calculation of figures. The ques

tion of damages is for the jury, and they have found what they deem to sufficient, and there is no objection that there was any misdirection or any such misconduct or mistake: Mayne on Damages, 3rd ed., 511; Graham and Waterman on New Trials, vol. ii., 1166; Hilliard on New Trials, 2nd ed., 573; Falvey v. Stanford, L. R. 10 Q. B. 54; Kelly v. Sherlock, L. R. 1 Q. B. 686; Jones v. McDowell, 12 U. C. R. 214; Craig v. Corcoran 24 U. C. R. 406 (a.) As to the third and fourth counts, the evidence fairly justified a verdict for the defendant; at all events, the only damages which the plaintiffs could recover would be the price of the buggy, namely $30, and it is a settled rule of the Court not to interfere where the amount in dispute is so small.

McCarthy, Q. C., contra. There is no question but that the plaintiffs are entitled to a new trial on the last two counts. There has been, in fact, no finding on the issues joined therein. The jury should have found one way or the other. They should either have found for the defendants, or for the plaintiffs with the damages the evidence shewed they were entitled to, and the evidence clearly shews that they were entitled to substantial damages. The jury having found for the plaintiffs on the first two counts, it must be assumed that there was negligence in the defendants, and no contributory negligence in the plaintiffs. This would entitle the husband to a verdict, with such damages as he was entitled to. The damage to the buggy was not the only damage the husband sustained, for he is entitled to recover for the expenses for medical attendance, as also the damage he has sustained by the loss of the comfort and services of his wife. Then as to the first two counts. The cases shew that there is no inexorable rule of practice precluding the granting of new trials for smallness of damages, and when it appears that the jury have been guilty of misconduct, for instance, when the verdict is the result of a compromise, a new trial will be granted;

(a) See Phillips v. South Western R. W. Co., L. R. 4 Q. B. D. 406, affirmed on appeal, Weekly Notes, Aug. 2nd, 1879, p. 150.