Opinion
November 30, 1967.
Thomas J. O'Connor for the plaintiffs.
Donald A. Beaudry for the defendant.
The judge in allowing the motion for a new trial on the amount of damages filed a memorandum stating that on the evidence the damages awarded ($2,500) could only be based on speculation and conjecture as the minor plaintiff had not been in court and the descriptions of the injury to the little girl's finger varied considerably. This was within three of the four grounds stated in the motion, that is, that the verdict was against the evidence, against the weight of the evidence, and excessive. There was full compliance with G.L.c. 231, § 128. Compare Wright v. Apikian, 270 Mass. 302, 304-305. The declaration sought recovery for amputation of part of a finger and permanent scars and disfigurement. The judge in his memorandum noted that the principal claim for damages is the mortification and distress to the young girl in later life from the appearance of the finger. This was obvious; it is beside the point that the motion did not refer to future damages. The mother's testimony that one-quarter to one-half inch of the finger was cut off and her later testimony that "the finger has a complete fingernail on it," justified the statement that the descriptions of the injury varied.
Exceptions overruled.