WIDOWS APPEAL FAILS

Press, Volume LXXIV, Issue 22511, 20 September 1938, Page 6

WIDOWS APPEAL FAILS

DAMAGES FOR DEATH OP HUSBAND

APPLICATION FOR NEW TRIAL

REFUSED

(HUI AMOCUTIOH TILMmAU.*

WELLINGTON, September 19

The Appeal Court to-day refuted to grant a new trial in the ease of Ada Payne, widow, against Dunstan John Burney. Mrs Payne sued for £3OOO damages for the death of her husband, 1 who was killed while crossing the Hutt road on June 21, 1937, The jury found that the driver of Burney's car and Payne were both guilty ot negligence, materially contributing to the accident, but that Payne contributed ''in a lesser degree. The case was known locally as, the "Round Robin" case, in view of the letters sent by the jury subsequent to the verdict as to their intention to award the widow damages. The appeal was dismissed, without costs, Mr Justice Blair and Mr Justice Kennedy considering that the appeal should be dismissed, while Mr Justice Johnston and Mr Justice Fair delivered judgments in favour of a new trial. The Court being equally divided, the judgment of the Chief Justice (the Rt. Hon. Sir Michael Myers) stands. Costs were not awarded on the appeal in view of the division of opinion. ' Letters to Registrar \ At the request of the trial Judge the jury assessed damages at £1250. On the day after the verdict the, jury sent a letter to the registrar that it was the unanimous desire that £1250 should be awarded the .widow, and if they had understood the effect of their verdict they would have said deceased was not guilty of contributory negligence. Some days later they sent a further letter to the registrar to the effect that they had intended to find Payne not guilty of negligence, but found blm guilty of negligence to help the motorist. s The motion for a new trial was argued before the Chief Justice, who held that if both parties were guilty of negligence materially contributing to the accident there was no room for the issue of last opportunity, which in this case he had refused to put to the jury when the law was that plaintiff could not recover damages. -,

He held that the implication in the jury's first letter was that if they had known the effect of their honest and conscientious answers to the . issues they would have returned, to the second issue, an answer contrary to that which they actually gave. The implication jpf the second letter was that they were prepared to do an injustice to Payne by saying he had been guilty of negligence materially contributing to the accident because they thought that by doing so they might be avoiding some consequences to the driver of the car.

He argued that the widow was not entitled to succeed, and judgment was given for Burney, with costs,