E'

ORROR to the Circuit Court for Lucas | that she was a passenger, and that she was, County to review a judgment reversing a judgment of the Court of Common Pleas in plaintiff's favor for a less sum than was demanded in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed.

Statement by Summers, Ch. J.:

to some extent, injured. The plaintiff testified that she was sixty-two years of age; that prior to her injuries she was continuously employed in nursing, and earned from $10 to $14 per week; that she was confined to her bed for three weeks after the accident, and that for two months she was unable to do anything, and that she had earned but $10 in the year following the acThe defendant in error, Ellen J. Mason, cident; and that her eyesight and her heart sued the plaintiff in error to recover dam- are affected. The jury returned a verdict ages for personal injuries sustained by her for $25.05. The plaintiff moved for a new in alighting from a street car, operated by trial on the ground, among others, that plaintiff in error, on which she was a pas-"the verdict is so inadequate and insufficient senger. She avers that she was seriously as to show bias and prejudice on the part of the jury," that the verdict is contrary to the weight of the evidence, and that the decidedly against the weight of the evidence, in the opinion of the presiding judge, would not be reversed by the supreme court unless it appeared that the trial judge had abused the discretion with which the law invested him.

and permanently injured, and prays for $10,000 as damages. The defendant admits

Affirming order granting new trial.

In Lee v. Publishers George Knapp & Co. 137 Mo. 385, 38 S. W. 1107, it was held that the supreme court would not interfere with the discretion of the trial court in awarding a new trial because the verdict was inadequate as the result of prejudice, partiality, or misapprehension of the evidence, unless it plainly appeared that such discretion was arbitrarily or unreasonably exercised.

To the same effect are Chouquette v. Southern Electric R. Co. 152 Mo. 257, 53 S. W. 897; and Loevenhart v. Lindell R. Co. 190 Mo. 342, 88 S. W. 757.

In Tathwell v. Cedar Rapids, 122 Iowa, 50, 97 N. W. 96, the supreme court said that it interferes reluctantly with the action of the lower court in ruling on motions for a new trial on the ground of the inadequacy of the damages awarded, and especially where a new trial has been granted.

In Noble v. Kansas City, 222 Mo. 121, 120 S. W. 779, the court held that it is peculiarly within the discretion of the trial court to pass upon the weight of the evidence when considered in connection with a motion for a new trial on the ground that the damages awarded were inadequate; and when the record fails to show that the trial court has abused its discretion, the appellate court should not substitute its discretion for that of the trial court.

In Ft. Wayne & B. I. R. Co. v. Wayne Circuit Judge, 110 Mich. 173, 68 N. W. 115, it was held that the trial court has discretionary power in a personal injury case to set aside the verdict rendered, and order a new trial of its own motion, if it deems the award insufficient, and that such action will not be interfered with on appeal except in a case of clear abuse of such discretion. In that case the defendant asked for a writ of mandamus to compel the trial judge to vacate the order granting a new trial of his own motion.

In Clements v. Fift, 63 Ga. 158, it was held that the first grant of a new trial on the ground that the verdict was inadequate and

And in the following cases the appellate courts have affirmed the order of the trial court which set aside the verdict for inadequacy of the damages awarded and granted a new trial: Hubbard v. Mason City, 64 Iowa, 245, 20 N. W. 172; Ward v. Marshalltown Light, P. & R. Co. 132 Iowa, 578, 108 N. W. 323; Haven v. Missouri R. Co. 155 Mo. 216, 55 S. W. 1035; Richardson v. Missouri Fire Brick Co. 122 Mo. App. 529, 99 S. W. 778; Bartlett v. Helmbacher Forge & Rolling Mills Co. (Mo. App.) 122 S. W. 351; Ford v. Minneapolis Street R. Co. 98 Minn. 96, 107 N. W. 817, 8 A. & E. Ann. Cas. 902; Kelly v. Rochester, 38 N. Y. S. R. 797, 15 N. Y. Supp. 29; Brown v. Foster, 1 App. Div. 578, 37 N. Y. Supp. 502; De la Torre v. Metropolitan Street R. Co. 48 App. Div. 126, 62 N. Y. Supp. 601; Morris v. Metropolitan Street R. Co. 51 App. Div. 512, 64 N. Y. Supp. 878; McCormick v. Missouri, K. & T. R. Co. 25 Tex. Civ. App. 321, 61 S. W. 983; Barrette v. Carr, 75 Vt. 425, 56 Atl. 93; Emmons v. Sheldon, 26 Wis. 648.

In North Carolina it is held that the dis-· cretion of the trial court in setting aside a verdict for inadequacy of damages is not reviewable on appeal. Benton v. Collins, 125 N. C. 83, 47 L.R.A. 33, 34 S. E. 242. The court said that the power to correct prejudiced and grossly unfair verdicts must be vested somewhere, and that it is best that such power be confided to the judges who preside over the trials.

Affirming decision of lower court refusing new trial.

In Woodward v. Consolidated Traction Co. 17 Pa. Super. Ct. 576, it was said that the power of the appellate court to review the discretionary act of the trial court in refusing to grant a new trial because of the alleged inadequacy of the verdict was

verdict is contrary to law. The trial court | legal principle, nor in the rules of law or overruled the motion, and entered judgment on the verdict. The plaintiff prosecuted error in the circuit court, and that court reversed the judgment and remanded the case for a new trial, on the ground that the trial court erred in not granting a new trial on the ground that the verdict was so inade- | quate that it was not sustained by sufficient evidence. Error is prosecuted in this court.

McDonald v. Walter, 40 N. Y. 551; Smith v. Dittman, 16 Daly, 427, 11 N. Y. Supp. 769; Benton v. Collins, 125 N. C. 83, 47 L.R.A. 33, 34 S. E. 242; Lee v. Publishers George Knapp & Co. 137 Mo. 385, 38 S. W. 1107; Beattie v. Moore, Ir. L. R. 2 C. L. 28; Bailey v. Cincinnati, 1 Handy (Ohio) 438; Kelly v. Rochester, 38 N. Y. S. R. 797, R. Co. 25 App. Div. 285, 49 N. Y. Supp. 486;

Messrs. Smith & Baker for plaintiff in 15 N. Y. Supp. 29; Saperstone v. Rochester

Mr. Stephen Brophy, for defendant in Justice v. Lange, 52 N. Y. 331; Hart v.

Hudson River Bridge Co. 80 N. Y. 622; grossly inadequate | Littlefield v. Lawrence, 83 App. Div. 329, 82 N. Y. Supp. 25; Hurley v. Metropolitan

the verdict of a jury is subject to the super-, sonably small, on the grounds and reasons vision of the court, whether too large or too small. A leading case is Phillips v. London & S. W. R. Co. (1879) L. R. 5 Q. B. Div. 78, 8 Eng. Rul. Cas. 447. That was a suit for personal injuries. On the trial before Field, J., and a special jury the jury gave the plaintiff £7,000. The plaintiff moved for a new trial, which was granted by the Queen's bench division on the ground that the amount of damages given by the jury was so small as to show that they must have left out of consideration some of the circumstances which ought to have been taken into account. The defendants appealed. James, L. J., in the court of appeal said (85): "We agree that judges have no right to overrule the verdict of a jury as to the amount of damages merely because they take a different view, and think that if they had been the jury they would have given more or would have given less, still the verdicts of juries as to the amount of damages are subject, and must for the sake of justice be subject, to the supervision of a court of first instance, and, if necessary, of a court of appeal in this way; that is to say, if in the judgment of the court the damages are unreasonably large or unreasonably small, then the court is bound to send the matter for reconsideration by another jury." He also says that they are of the opinion that the damages were unreaa result which was strictly just to neither of them.

So, also, in the following cases the appellate court, after a review of the evidence, reversed the order of the trial court for refusing to grant a new trial because of the smallness of the damages awarded: Anglin v. Columbus, 128 Ga. 469, 57 S. E. 780; Kilmer v. Parrish, 144 Ill. App. 270; Henderson v. St. Paul & D. R. Co. 52 Minn. 479, 55 N. W. 53; Moseley v. Jamison, 68 Miss. 336, 8 So. 744; Fischer v. St. Louis, 189 Mo. 567, 105 Am. St. Rep. 380, 88 S. W. 82; Robbins v. Hudson River R. Co. 7 Bosw. 1; Meyer v. Hart, 23 App. Div. 131, 48 N. Y. Supp. 904; Saperstone v. Rochester R. Co. 25 App. Div. 285, 49 N. Y. Supp. 486; Tourtelotte v. Westchester Electric R. Co. 120 App. Div. 417, 105 N. Y. Supp. 50; Michalke v. Galveston, H. & S. A. R. Co. (Tex. Civ. App.) 27 S. W. 164; May v. Hahn, 22 Tex. Civ. App. 365, 54 S. W. 416, s. c. subsequent appeal (Tex. Civ. App.) 64 S. W. 942; Burns v. Merchants' & P. Oil Co. 26 Tex. Civ. App. 223, 63 S. W. 1061; Whitney v. Milwaukee, 65 Wis. 409, 27 N. W.

39.

Miscellaneous.

In Bradwell v. Pittsburgh & W. E. Pass. R. Co. 139 Pa. 404, 20 Atl. 1046, it was held that a new trial cannot be refused on condition that the defendant pay a sum fixed by the court, for the reason that the plain

stated by the chief justice in the Queen's bench division. The case (Phillips v. South Western R. Co.) in the Queen's bench division is reported in (1879) L. R. 4 Q. B. Div. 406. On page 408 Cockburn, Ch. J., says: "It was contended on behalf of the defendants that, even assuming the damages to be inadequate, the court ought not on that account to set aside the verdict and direct a new trial, inadequacy of damages not being a sufficient ground for granting a new trial in an action of tort, unless there has been misdirection or misconduct in the jury, or miscalculation, in support of which position the cases of Rendall v. Hayward, 5 Bing. N. C. 424, and Forsdike v. Stone, L. R. 3 C. P. 607, were relied on. But in both those cases the action was for slander, in which, as was observed by the judges in the latter case, the jury may consider not only what the plaintiff ought to receive, but what the defendant ought to pay. We think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us, if we think the damages unreasonably small, to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to tiff has a right to have his damages assessed by a jury.

But in Marsh v. Minneapolis Brewing Co. 92 Minn. 182, 99 N. W. 630, where the verdict was for $50, it was held that a condition that the defendant may avoid a new trial by payment of a sum fixed by the court-$175 in that case-was not prejudicial to the defendant and within the reasonable discretion of the trial court.

To the same effect is Ford v. Minneapolis Street R. Co. 98 Minn. 96, 107 N. W. 817, 8 A. & E. Ann. Cas. 902, where it was said that such orders are discretionary with the trial court, and will not be set aside unless it affirmatively appears that they constitute an abuse of discretion.

In Scheen v. Poland, 34 La. Ann. 1107, the supreme court on appeal awarded exemplary damages in case of assault and battery.

And in Sullivan v. Vicksburg, S. & P. R. Co. 39 La. Ann. 800, 4 Am. St. Rep. 239, 2 So. 586, the amount of the damages was increased by the supreme court on appeal.

In Richardson v. Zuntz, 26 La. Ann. 313, the appellate court reversed the order of the lower court which denied a new trial, where the verdict had been rendered for the defendant, and ordered that the plaintiff recover from the defendant $500 as damages, and that defendant pay the costs in both courts.

meet the justice of the case." The case was | sion that "a new trial shall not be granted tried the second time before Lord Coleridge, on account of the smallness of damages, in Ch. J., and a jury, and resulted in verdict an action for an injury to the person or and judgment for £16,000, which was af- reputation, where the damages equal the acfirmed both in the Queen's bench division tual pecuniary injury sustained," it is held: and in the court of appeal (1879) L. R. 5"(1) At common law the court had the C. P. Div. 280. The statement of the law by James, L. J. (1879) L. R. 5 Q. B. Div. 78-85, 8 Eng. Rul. Cas. 447, is cited with approval by Lord Davy in Watt v. Watt [1905] A. C. 115-121, 2 A. & E. Ann. Cas. 672.

The following American cases may be cited as taking the same view: Fischer v. St. Louis, 189 Mo. 567, 107 Am. St. Rep. 380, 88 S. W. 82; Benton v. Collins, 125 N. C. 83, 47 L.R.A. 33, 34 S. E. 242; Tathwell v. Cedar Rapids, 122 Iowa, 50, 97 N. W. 96; Miller v. Delaware, L. & W. R. Co. 58 N. J. L. 428, 33 Atl. 950; Ellsworth v. Fairbury, 41 Neb. 881, 60 N. W. 336; McDonald v. Walter, 40 N. Y. 551; Henderson v. St. Paul & D. R. Co. 52 Minn. 479, 55 N. W. 53; Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809; Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 39.

same power to grant a new trial where the verdict was inadequate as where it was excessive, and the provisions of the Code supersede the common-law rules only so far as the same are inconsistent. (2) Code, § 3755, when liberally construed, as it should be, authorizes a new trial where the verdict is inadequate, notwithstanding the omission from the present Code of the provision contained in § 2839 of the Code 1873. Where the trial judge finds that the jury failed to allow the amount of damages shown by the uncontradicted testimony, he may set the verdict aside as in conflict with the evidence, and grant a new trial."

(3)

In the well-considered opinion by McClain, J., in answer to the contention in that case that the repeal had taken away all power to grant new trials on the ground of inadequacy of the verdict, excepting in actions upon contract, or for the injury or detention of property, he said it was more reasonable to infer that the repeal "indicates an intention to abolish the limitation found in that section on the right to grant new trials for inadequacy of damages, and that the legislature understood that, after this section was omitted, the general power to set aside verdicts because not supported by the evidence would extend to verdicts which were inadequate, as well as those which are not only partially, but entirely, contrary to the evidence." He also said that the power to set aside a verdict that is manifestly inadequate under the evidence is expressly given by the sixth subdivision, "that the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law."

Among the grounds for a new trial enumerated in § 5305, Rev. Stat., are these: "(4) Excessive damages, appearing to have been given under the influence of passion or prejudice. (5) Error in the assessment of the amount of recovery, whether too large or too small, when the action is upon a contract, or for the injury or detention of property. (6) That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law." And prior to its repeal in 1898 (93 Ohio Laws, p. 217), § 5306, Rev. Stat., provided: "A new trial shall not be granted on account of the smallness of damages, in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury sustained." Counsel for plaintiff in error concede that the repeal of the section restores to the trial court its common-law power to set aside a verdict on the ground that it is inadequate, but contend that it is discretion ary with the trial court, and that the circuit court, the reviewing court, has not power to reverse the judgment of the trial court overruling a motion for a new trial on that ground, and, upon such ground, grant a new trial, and that to hold that it may is to add to the cases specified in subdivision 5, § 5305. There are cases holding that it is discretionary (Ft. Wayne & B. I. R. Co. v. Wayne Circuit Judge, 110 Mich. 173, 68 N. W. 115; Benton v. Collins, supra); but in Tathwell v. Cedar Rapids, supra, under Code provisions substantially The granting of a new trial on the identical with those of this state, and where ground that the damages are inadequate is there had been a repeal of a similar provi-held discretionary in the trial court, and

The limitation in subdivision 5, § 5305, was made probably in view of the denial of a new trial on account of the smallness of the damages, in an action for injury to a person or reputation; and, conceding that the repeal of § 5306, whatever may have been the supposition of the legislature, cannot under any known rule of construction be held to add actions for an injury to the person or reputation to the actions enumerated in subdivision 5, § 5305, yet in view of the repeal of original § 5306, § 5305 must be construed as not depriving the court of power to grant new trials in the actions mentioned in original § 5306 when the verdict is inadequate.