The opinion
BUDGE, J.,
Dissenting. — Appellants appealed from a judgment for $25,000 entered against them May 19, 1936, and from an order denying their motion for a new trial, and also from the judgment of the court entered August 10, 1936, after the court had provisionally denied their motion for a new trial upon condition that respondents remit all that part of the previous judgment in excess of $10,000, which respondents did.
I shall direct my views to but one point, namely: Did the court err in refusing to grant a new trial, and, in lieu thereof, reducing the judgment, with respondents’ consent, to $10,000?
There is no room for contention in this jurisdiction that where a judgment is merely excessive, power rests in the trial court and in this court to reduce the judgment, provided there is evidence in the record sufficient to sustain the judgment as so reduced. The trial court on August 4, 1936, notified counsel in a written communication in part as follows:
“I am of the further opinion that the damages rendered in said case are excessive and unwarranted by the evidence
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and appear to have been given under the influence of prejudice. However, if the plaintiffs will remit that part of the judgment in excess of $10,000.00, the motion for new trial will be overruled.....and if ... . the same is not remitted a new trial will be granted.”
Eeference is made to said written communication in the court’s order denying appellants’ motion for a new trial in the following language:
“In this matter the defendants’ motion for new trial having come regularly on for hearing, the defendants appeared with their attorneys Edge & Wilson and Wm. S. Hawkins and the plaintiffs were represented by their attorneys Whitla & Knudson. Thereupon said matters were argued and submitted and the Court on August 4th made a memorandum decision to the effect that the damages were excessive, but that the Motion for New Trial would be denied if the plaintiffs should remit that part of the judgment in excess of $10,000 and gives the plaintiffs until August 10th to file Notice of such remit herein, and the plaintiffs having heretofore duly filed in this Court notice that said judgment in excess of said sum would be remitted in accordance with the decision of this Court.
“IT IS THEEEFOEE OEDEEED that the defendants’ motion for a new trial be, and the same hereby is overruled and denied.”
The written communication first referred to was filed October 30, 1936, and is included in the clerk’s certificate to the transcript. It is one of the files in the case and is here for consideration. This written communication of August 4th and the order denying the motion for new trial should be considered together in determining whether or not the verdict of the jury was influenced by passion or prejudice. It will be noticed in the court’s order denying the motion for new trial that there is omitted therefrom the following language used in the written communication of August 4, 1936:
(referring to the damages awarded) “and unwarranted by the evidence and appear to have been given under the influence of prejudice.”
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The verdict of the jury apparently shocked the sense of justice of the trial judge. He reduced the verdict from $25,000 to $10,000, wiping out $15,000 of the verdict. No other reasonable conclusion can be arrived at than that the trial judge was satisfied that the verdict of the jury was not only excessive but was arrived at as the result of passion or prejudice, as stated in his written communication of August 4, 1936. Where the verdict is the result of passion or prejudice the trial judge has no alternative except to grant a new trial.
There is another principle of law upon which there should be no disagreement. Where in any case a judgment rendered by a jury is so grossly excessive that it can be accounted for only upon the theory that the jury was actuated by passion or prejudice it is the duty of the court to set aside the verdict and grant a new trial. In
Tunnel Mining & Leasing Co. v. Cooper,
50 Colo. 390 , 115 Pac. 901 , Ann. Cas. 1912C, 504, 39 L. R. A., N. S., 1064, it was said:
“Since, therefore, on principle and authority, the finding of the court that the verdict was excessive must be treated, in legal effect, as a finding that it was returned under the influence of passion and prejudice, it was reversible error to allow plaintiff to remit a portion of it, and enter judgment for the residue, because the gist of the whole matter is that no trial by an impartial jury has been had. To permit the court, in such situation, to substitute its judgment, as to the amount which the plaintiff ought to have, for that of the jury, would be in effect to demy the right of the defendant to such a trial as the general laws provide and the Constitution guarantees. ’ ’
Where general damages have been recovered, if they be so excessive as to lead the court to suspect passion or prejudice, the court has no power to require a portion of the damages to ,be written off, and thereupon refuse a new trial.
(Savannah, F. & W. Ry. Co. v. Godkin,
104 Ga. 655 , 30 S. E. 378 , 69 Am. St. 187;
Carpenter v. Village of Dickey,
26 N. D. 176 , 143 N. W. 964 .) In
Cleveland Ry. Co. v. Mueller,
31 Ohio App. 488 , 166 N. E. 391 , the docket entry disclosed:
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“The plaintiff having accepted a
remittitur
of $2,000.00, the motion for a new trial is OA^erruled, to which the defendant excepts. It is therefore considered that the plaintiff recover of the defendant her said damages less the
remittitur,
and also her costs of this suit.”
In discussing this point the following language is used:
“ ‘pausing only to say that, ivhen a trial court reaches the conclusion that a verdict returned by a jury in a personal injury case is 33%% greater than it should be, and to that extent higher than the court can sustain, the case is one calling for the closest scrutiny and consideration by the trial judge on the subject of passion and prejudice on the part of the jury.’
“In the consideration of this case, we have in mind the docket entry of the court upon the question of
remittitur.
It does not state that it was because of passion or prejudice, or that it was not because of passion or prejudice, that the
remittitur
was made. Therefore, the
remittitur
was made independent of the claim of passion or prejudice, so far as the docket entry is concerned; but it appearing in the motion for new trial, under the third assignment of error, that the verdict is excessive, appearing to have been rendered under the influence of passion or prejudice, it follows by inference at least, from the record, that the verdict was" reduced to one-half the amount because of passion and prejudice. ’1
In the instant case the verdict was reduced $15,000,- — in other words, from $25,000 to $10,000. What other inference could be drawn than that the verdict of the jury was the result of passion and prejudice?
The general rule is that if the verdict is not the result of passion or prejudice it may be reduced by remission; if the verdict is the result of passion or prejudice it must be set aside and a new trial granted.
(Cotton v. Ship-By-Truck Co.,
337 Mo. 270 , 85 S. W. (2d) 80 ;
Rafferty v. Public Service Interstate Transp. Co.,
13 N. J. Misc. 80, 177 Atl. 357 ;
World Oil Co. v. Hicks,
(Tex. Civ. App.) 75 S. W. (2d) 905 ;
Ahrens v. Fenton,
138 Iowa, 559 , 115 N. W. 233 ;
Rhyne v. Turley,
37 Okl. 159 , 131 Pac. 695 ;
Minneapolis St. Paul & Sault Ste. Marie Railway Co. v. Moquin,
283 U. S. 520 , 51 Sup. Ct. 501,
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75 L. ed. 1243;
Smith v. Martin,
93 Vt. 111 , 106 Atl. 666 ;
Arkansas Valley Land & Cattle Co. v. Mann,
130 U. S. 69 , 9 Sup. C.t. 458, 32 L. ed. 854;
McAfee v. Ogden Union Ry. & Depot Co.,
62 Utah, 115 , 218 Pac. 98 ;
Adcock v. Oregon R. & N. Co.,
45 Or. 173 , 77 Pac. 78 ;
Henderson v. Dreyfus,
26 N. M. 541, 191 Pac. 442 ;
Leinbach v. Pickwick Greyhound Lines,
135 Kan. 40 , 10 Pac. (2d) 33 ;
Yard v. Gibbons,
95 Kan. 802 , 149 Pac. 422 ;
Gila Valley, G. & N. Ry. Co. v. Hall,
13 Ariz. 270 , 112 Pac. 845 ;
Kohut v. Boguslavsky,
78 Colo. 95 , 239 Pac. 876 ;
Schendel v. Bradford,
106 Ohio St. 387 , 140 N. E. 155 .)
I. O. A., sec. 7-602 provides:
“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: ....
“5. Excessive damages, appearing to have been given under the influence of passion or prejudice.....”
The trial judge in his written communication of August 4th, followed the provisions of subd. 5 of I. C. A., sec. 7-602,
supra,
substantially when he stated “I am further of the opinion that the damages rendered in said ease are excessive and unwarranted by the evidence and appear to have been given under the influence of prejudice,” and it was no doubt mainly for the latter of the foregoing reasons that the trial judge required respondents to remit $15,000 of the judgment, otherwise a new trial would be granted. In other words, the court formally notified counsel for respondent that a new trial would be granted unless the judgment was reduced, basing his decision on two grounds, first, that the judgment was excessive and unwarranted by the evidence and, second, that the verdict appeared to have been given under the influence of prejudice. To uphold the judgment herein, as entered by the court, is in effect a denial of the right to a jury trial. To permit the judgment entered by the court to stand, based in part upon a verdict of the jury given under the influence of prejudice, is contrary to the great weight of authority. Where a verdict is rendered as a result of passion or prejudice it is no legal verdict. The judgment should be reversed and the cause re
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manded with directions to grant a new trial and submit to another jury the determination of the amount of damages, if any, sustained by respondents.