Opinion of the Court.

therefor, the Register of the State Land Office is hereby directed to issue to the grantee named in said deed, or to his assigns, a patent for said lands, upon his producing and surrendering said Sheriff's deed and assignment, if any there be, and making full payment to the State for said lands."

E. M. Martin, and McKune & Welty, for Petitioner.

John L. Love, Attorney General, contra.

By the COURT:

The petitioner is not entitled to the patent, under section thirty-five hundred and nineteen of the Political Code, because there is no offer to surrender the certificate of purchase; nor is he entitled, under section two of the Act of March 27th, 1872, because he has not produced the Sheriff's deed to the whole of the tract originally purchased by Miller. Application for the writ denied.

[No. 3,671.]

G. D. MARIANI, ADMINISTRATOR OF THE ESTATE OF GUISEPPE MARIANI, DECEASED, v. GEORGE DOUGH. ERTY.

NEW TRIAL. A new trial may be granted to the party who obtained a verdict, when the damages awarded to him are less than he was entitled to. NEW TRIAL WHEN DAMAGES ARE TOO SMALL-A verdict for two hundred dollars damages is not a just and fair compensation for the damages sustained, caused by the careless and reckless taking of human life, and such verdict justifies the Court in granting the plaintiff a new trial.

APPEAL from the District Court of the Fifteenth Judicial District, City and County of San Francisco.

Argument for Respondent.

The defendant, under a contract with the Superintendent of Streets in San Francisco, was engaged in blasting rock on the westerly side of Kearny street. The defendant was struck by a rock, thrown by the explosion of a blast, and died from the effects of the injury.

The defendant appealed.

The other facts are stated in the opinion.

H. F. Crane, for Appellant.

The rule in ordinary cases of personal torts is well considered and laid down by this Court in Aldrich v. Palmer, 24 Cal. 516; Boyce v. Cal. Stage Co., 25 id. 473; Wheaton v. N. B. & M. R. R. Co., 36 Cal. 591.

Again, in this peculiar class of cases, the statute has given the jury the sole discretion and jurisdiction in the assessment of damages. The language of the statute is as follows: "In every such action the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death, to the wife and next of kin of such deceased person." In Myers v. City and County of San Francisco, 43 Cal. 215, this Court says: "The discretion of the jury, in fixing the amount of such damages, should not be interfered with by the Court, except in cases of most palpable abuse of such discretion."

It is safe to presume from the verdict, that the jury did not consider this a proper case for exemplary damages, and only considered the actual or pecuniary damages resulting to the next of kin.

F. P. Dann, for Respondent.

Upon the question of damages, the cases cited by the appellant's counsel, except the last, having been decided under statutes the terms of which are entirely dissimilar to our own, can have no application to this case. The last case that

Opinion of the Court.

he cites from our own Supreme Court, does not sustain his point, but is to the contrary. As the Supreme Court of this State has given a construction to our statute, that construction must undoubtedly prevail, irrespective of whether the decisions of other Courts harmonize therewith or not.

The attention of the Court is also called to the following cases: Penn. R. R. Co. v. McClosky, Admr., 23 Penn. St. R. 526; Dickens v. New York Cen. R. R. Co., 28 Barb. 41; Quinn v. Moore, 15 N. Y., 432; Keller v. New York Cen. R. R. Co., 17 How. Pr. R. 102; same case, 24 How. Pr. R. 172, 182; Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 314.

By the COURT:

This action was brought to recover damages from the defendant for causing, by his wrongful act, neglect, and default, the death of the plaintiff's intestate. The plaintiff recovered a verdict and judgment for two hundred dollars; and, upon his motion, the Court granted a new trial. The appeal is from the order granting the new trial.

Various reasons were assigned why a new trial should be had; but the Court granted it upon the ground of the insufficiency of the evidence to justify the verdict. The guilt and liability of the defendant being established by the verdict, it seemed to the Court below "a mockery of justice to assess such an insignificant sum as a just and fair compensation, or for damages, resulting from the reckless taking of human life."

A new trial may be granted when the damages are too small as well as when they are too large. (Hall v. Bark Emily Banning, 33 Cal. 522; McDonald v. Walter, 40 N. Y. 551.)

It appears from the record that the plaintiff's intestate was a house painter and paper hanger by trade, about fiftysix or fifty-seven years of age, industrious and temperate;

Statement of Facts.

that he found employment about three fourths of the time, and made, when at work, from four to seven dollars per day; that he had four sons and one daughter, all of whom had reached the age of majority, except one, and he was ten or eleven years of age, living with and dependent upon his father for support.

In view of these facts, we cannot say that the Court abused its discretion in holding, if the defendant was liable at all, that the damages awarded were altogether disproportionate to the injury received.

Order affirmed.

[No. 3,564.]

JAMES W. MOORE v. E. J. BATES.

BILL OF PARTICULARS.— A count in a complaint for a sum of money alleged to be due by the defendant, for the use and occupation of the plaintiff's land, does not present a claim upon which a bill of particulars can be required. NEW TRIAL. Although the Court excludes all evidence on the part of the plaintiff, and renders a judgment for the defendant, yet a trial is had, in the sense in which the Court may grant a new trial, ón application of the plaintiff. EVIDENCE WHEN BILL OF PARTICULARS IS DEMANDED. If the complaint contains several counts, on one of which a bill of particulars cannot be required, and the defendant demands a bill of particulars, which is not given, the Court should not, on the trial, exclude evidence on the count on which a bill of particulars was not required.

APPEAL from the District Court of the Fifth Judicial District, County of San Joaquin.

The complaint contained counts for grain sold, for the use of carriages and horses, for money loaned, etc., and also a count for one hundred and sixty dollars for the use and occupation of the plaintiff's land, under a lease, within two years before the commencement of the action.

On the day the case was called for trial, and before the

Opinion of the Court.

commencement of the trial, the defendant's attorney served on the plaintiff's attorney a demand for a bill of particulars. The plaintiff did not comply with the demand. When the case was called the Court, on the objection of the defendant, excluded all evidence on behalf of the plaintiff, on the ground that no bill of particulars had been served, and rendered judgment for the defendant. The plaintiff moved for a new trial, and the Court granted the application, and the defendant appealed from the order granting a new trial.

Byers & Elliott, for Appellant, cited Anderson v. Perrine, 32 Cal. 265, and Secs. 192 and 193 of the Practice Act.

J. H. Budd and Frank T. Baldwin, for Respondent.

By the COURT:

It is not questioned by the appellant that the Court erred in its order excluding all evidence of the plaintiff in support of the allegations of his complaint, upon the ground that no bill of particulars had been furnished to the defendant in pursuance of the requirements of his notice and demand therefor. It is clear that at least the count for the value of the use and occupation of plaintiff's land did not present a claim upon which a bill of particulars could be required. It is contended, however, that this error cannot be presented upon a motion for a new trial, but that the plaintiff's remedy was by appeal from the judgment. In support of this position, the appellant urges that since the Court, upon the motion of defendant, excluded all evidence upon the part of the plaintiff, there was no trial of the case, in the true sense of the word, and hence no new trial could be asked or granted. The appellant's position cannot be maintained. It is not essential to a trial that evidence should be introduced before the Court or jury. The case was regularly called for trial upon the day set for hearing, upon issues