The opinion
On Rehearing.
PUTNAM, Circuit Judge.
This is an action of tort for personal injuries, in which the judgment below was in favor of the plaintiff on a verdict of a jury. The suit was brought by a minor for an injury to himself, and, in assessing damages, the jury were permitted to allow him for loss of time, services, and earning capacity during his minority, in addition to what might be assessed for his physical sufferings. The only error was in allowing damages for loss of time, services, and earning capacity during his minority. In all other respects the proceedings at the trial were found to be correct. We held that the case should go back for a new trial on the issue of damages alone, and judgment was entered accordingly. The plaintiff in error, who was the defendant below, has now filed a petition for rehearing, in which he claims that, although the error related only to the rule of damages, the entire verdict must, or should in justice, be set aside, and that a venire de novo must, or should in justice, be ordered covering all the questions submitted to the jury. This is undoubtedly the rule at common law. Of course, in criminal proceedings at common law the rule is even more rigid. This, however, is all changed, so far as we are concerned, by various acts of Congress, of which the last was that of June 1,1872, c. 255, § 2, 17 Stat. 196 . This is now found in section 701 of the Revised Statutes, as follows:
“The Supreme Court may affirm, modify, or reverse any judgment, decree or order of a Circuit Court, or District Court acting as a Circuit Court, or of a District Court in prize causes, lawfully brought before it for review, or may direct such judgment, decree or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may re’quire.”
The series of statutes resulting in section 701 of the Revised Statutes was formally cotisidered in Ballew v. United States, 160 U. S. 187, 198 , 16 Sup. Ct. 263, 40 L. Ed. 388 , and sequence, and the flexible powers of the Supreme Court, which powers we hold by the act establishing the Circuit Court of Appeals, was fully explained. At page 202 of 160 U. S., page 268 of 16 Sup. Ct. ( 40 L. Ed. 388 ) the conclusion is as follows:
*487 “From this, and from a review of the legislation on the subject of the powers conferred upon this court as a reviewing court, it follows as a necessary conclusion that general authority was given to it on a writ of error to take such action as the ends of justice, not only in civil, but in criminal, cases might require.”
There was a general verdict of guilty on two counts of the indictment, the judgment was reversed as to the first count, and the case remanded with instructions to enter judgment according to the verdict on the second count, “and for such proceedings with reference to the first count as may be in conformity to law.” The question in the precise form we have here does not seem to have ever been specifically passed on, but definite rulings on. kindred topics establish beyond question the propriety of the judgment which we entered, so far as our legal right to enter it is concerned. We have met with a large class of cases where this broad power was exercised with reference to proceedings in equity, and proceedings at common law where juries have been waived; but, in Insurance Company v. Piaggio, 16 Wall. 378, 390 , 21 L. Ed. 358 , the judgment was reversed, and a venire de novo refused, and directions entered to the Circuit Court to modify the judgment by disallowing a single item of $5,000, which was specifically distinguished by the verdict of the jury. So,, in New York, etc., Railroad Company v. Estill, 147 U. S. 591, 596, 622 , 13 Sup. Ct. 444, 37 L. Ed. 292 , where the jury found the issues for the plaintiff, and allowed a large amount of interest as shown by the record, but assessed the total damages in lump, the Supreme Court directed a new judgment allowing the principal without interest. In Felton v. Spiro, 78 Fed. 576, 583 , 24 C. C. A. 321 , it appeared that the error occurred after verdict with reference to a motion for a new trial, and the Circuit Court of Appeals for the Sixth Circuit reversed the judgment of the court below, leaving the verdict to stand, but directing further proceedings with regard to what was subsequent thereto. In American National Bank v. Williams, 101 Fed. 943, 947 , 42 C. C. A. 101 , the Circuit Court of Appeals for the Eighth Circuit reversed the judgment entered on a verdict of the jury, and remitted the case with directions to rectify the allowance of interest, and to enter a judgment for the diminished amount after rectification, and annulling it for the residue. In Great Western Coal Co v. Chicago G. W. Ry. Co., 98 Fed. 274, 279 , 39 C. C. A. 79 , where the declaration contained two counts, and a verdict had been rendered for the plaintiff on the second count, and, by direction of the trial court, for the defendant on the first count, the judgment was reversed, with an order that the judgment on the second count should stand, but that there should be a new trial on the first. In Pennsylvania Railroad Company v. Jones, 155 U. S. 333, 353 , 15 Sup. Ct. 136, 39 L. Ed. 176 , the judgment below was reversed, with directions to permit the plaintiffs below to elect to become nonsuit as to one defendant, and to take judgment on the verdict against the other defendants, and with further directions that, if they did not so elect, the entire verdict was to be set aside and a new trial ordered. This last case was considered and approved in Washington Gas Light Company v. Lansden, 172 U. S. 534, 556 , 19 Sup. Ct. 296, 43 L. Ed. 543 . *488 A number of cases will be found, both in the Supreme Court and the Circuit Courts of Appeals, where the only error related to the assessment of damáges, and where it has been ordered that, on a partial remittitur, the judgment be affirmed. In such cases it has sometimes been required that the remittitur should be made in the Circuit Court and sometimes in the appellate court; and sometimes the judgment has been reversed and remanded to the court below for all proceedings with reference thereto. Among these cases are Hansen v. Boyd, 161 U. S. 397, 411, 412 , 16 Sup. Ct. 571, 40 L. Ed. 746 ; and Hazard Powder Co. v. Volger, 58 Fed. 152, 157, 158 , 7 C. C. A. 130 , decided by the Circuit Court of Appeals for the Eighth Circuit on September 13, 1893. The latter case is peculiarly like, this at bar, because, in the damages assessed there, the husband was allowed to recover for the loss of services and expenses regarding his wife, who was injured, and the court sifted out the details, and pointed out the reduction to which he should submit, and ordered that the judgment might stand if a remittitur of that amount, $426, was entered.
It is true, as the petition before us represents, that there have been numerous cases where the error related peculiarly to damages, and yet, so far as the reports show, the entire verdict was set aside. In none of .those cases, however, was the question which we are considering examined, and therefore we are not called on to determine whether the circumstances were peculiar, or whether the propriety of ordering a new trial on only the question of damages was brought to the attention of the. court.
The petition also calls our attention to the fact that injustice may be done because of the well-known number of instances in which the jurors, who are opposed to each other on the question of any verdict whatever, compromise on a result far smaller than they would willingly assess if the liability was unquestioned. On the other hand, there can be no doubt that in many cases the damages are increased by the fact that the defendant who is sued insists on litigating the whole matter, and thus, perhaps, brings out at great length aggravating circumstances which otherwise would not appear, impressing the sympathies of the jury beyond what they otherwise would be impressed. Such considerations, however, are too fugitive to be taken into account by an appéllate tribunal, which deals only with questions of law. .If they have, any consideration at all, it is with the trial court, which may weigh all such matters in determining whether to set aside the verdict if it appears improper.
The statute which we have referred to, and the application of it to which we have called attention, demonstrate the flexibility of our powers in reference to the question before us. As the element of damages as to which the error in the trial occurred was only an incidental one, easily distinguished from everything else in the record, and as no complaint was made that the trial on the main issue was otherwise than just and lawful, -ire are not called on to require the parties in this litigation to travel again, at what may be great expense and labor, a long path on account of a misdirection with reference to *489 a short one, which misdirection may prove to be, after all, of very little practical consequence.
The petitioner also claims, inasmuch as the error related only to allowing the plaintiff below to recover for his services, etc., during minority, that, if we are to order a new trial only in part, we should limit it to an estimate of those services, and direct that the jury should find their value, and deduct it from the amount of the verdict already rendered. This would be a refining of the proceedings beyond anything heretofore known or suggested; and it would probably be illegal, because it would be impossible to put a new jury in the place of the old one, and to obtain any correct determination of the amount by which the verdict now before us was enhanced by reason of the error which occurred.
The court having fully considered the petition for rehearing, filed on April 21, 1906, and none of the judges who concurred in the judgment desiring that a rehearing should be had, it is ordered that the petition be, and the same is hereby, denied, and the' mandate may issue forthwith.