The opinion
HOOD, Associate Judge
(dissenting).
The majority opinion holds that the verdict of the jury in an action for malicious prosecution was excessive and on that ground alone reverses the judgment. Before stating the grounds for my disagreement, I think it proper to give some consideration to the power of an appellate court in a federal jurisdiction to review a judgment for alleged excessiveness of the verdict.
In Southern Railway Carolina Division v. Bennett, 233 U.S. 80 , 34 S.Ct. 566, 567 , 58 L.Ed. 860 Mr. Justice Holmes, speaking for the court said: “But a case of mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for re-examination here upon a writ of error.” Nearly twenty years later, in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485 , 53 S.Ct. 252, 255 , 77 L.Ed. 439 , in an opinion by Mr. Justice Brandéis, the court said: “This Court has frequently refrained from disturbing the trial court’s approval of an award of damages which seemed excessive or inadequate, and the circuit courts of appeals have generally followed a similar polity.”
Largely as a result of those two decisions, we find frequent statements in the federal circuits that a claim of excess in the verdict is not the subject of appellate review. Thus in this jurisdiction it was said in Washington Times Co. v. Bonner, 66 App.D.C. 280, 293 , 86 F.2d 836, 849 , 110 A.L.R. 393 , 411: “In any event, we are not at liberty to reverse on account of the size of the verdict. The rule is settled in the Federal courts, not only in libel actions but also in general, that an appellate tribunal will not review the action of a trial court in granting or denying, for excessiveness or inadequacy of the verdict, a motion for a new trial.” In Behrman v. Sims, 81 U.S.App.D.C. 303, 305 , 157 F.2d 862, 864 , the court said: “The final point of the appellant is that the verdicts 'were excessive. Be that as it may, this court is without authority to review on that score.” And again, in Feltman v. Sammond, 82 U.S.App.D.C. 404 , 166 F.2d 213 , it was said: “It is settled that we cannot review a trial court’s decision to grant or deny a new trial on the ground that a verdict was excessive or inadequate.”
In other federal circuits we find similar statements. In Searfoss v. Lehigh Valley R. Co., 2 Cir., 76 F.2d 762, 763 , the court said: “This court lacks the power to review as a question of fact the subject of excessive damages.” In Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61, 64 , the court said: “The third point urged by the defendant is that the damages fixed by the jury at $35,000 are excessive. The members of the Court think the verdict is too high. But they also feel very clear that there is nothing the Court can do about it.” In Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 197 F.2d 153, 156 , certiorari denied 344 U.S. 874 , 73 S.Ct. 166 , 97 L.Ed. 677 , it was said: “A verdict is unreviewable by an appellate court for alleged- excessiveness if it is excessive only in fact.” In Flener v. Louisville & N. R. Co., 7 Cir., 198 F.2d 77, 80 , the court said: “This court has adhered to the rule that it will not review a judgment for excessiveness of damages.” And in Zimmerman v. Mathews Trucking Corp., 8 Cir., 203 F.2d 864, 868 , the court said: “This Court has consistently adhered to the proposition that the responsibility for keeping jury awards within reasonable bounds is essentially that of the trial courts and not of this Court.”
Despite the seemingly flat statements that excessiveness of verdict is not reviewable, we find statements or at least indications in the decisions that the action of a trial court in refusing to set aside a verdict for exces-siveness may be reviewed to determine whether such action constituted an abuse of discretion. In this jurisdiction in Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 86 , 180 F.2d 13, 18 , it was said: “We do not think that the trial court abused its discretion when it sustained the jury’s award *551 of $15,000 to the infant plaintiff and $2,000 to her father.” In Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830 , the court said: “The quéstion of ex-cessiveness of a verdict is primarily one for the trial court; where, however, the verdict is grossly excessive, the denial by the trial court of a motion for a new trial constitutes such an abuse of discretion that this court will remand the cause for a new trial.” In Bradley Min. Co. v. Boice, 9 Cir., 194 F.2d 80, 83 , petition for rehearing en banc denied, 9 Cir., 205 F.2d 937 , certiorari denied 346 U.S. 874 , 74 S.Ct. 125 , 98 L.Ed. 382 the court said: “At most we may consider only whether the verdict is grossly excessive or 'monstrous.’ ”
In Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 101 , 70 S.Ct. 509, 511 , 94 L.Ed. 683 , the Supreme Court said: “We agree with the Court of Appeals that the amount of damages awarded by the District Court’s judgment is not monstrous in the circumstances of this case.” This statement has been construed as an indication by the Supreme Court that an appellate court may reverse a judgment where the amount awarded is so excessive as to be monstrous. See Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830 , footnote 10; Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, 310 . But also see Stevenson v. Hearst Consol. Publications, 2 Cir., 214 F.2d 902, 911 , certiorari denied 348 U.S. 874 , 75 S.Ct. 110 .
In spite of these numerous statements or indications that an appellate court may reverse for excessiveness of verdict there are remarkably few instances in which it has been done. A notable instance is found in Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400 , 4 A.L.R.2d 1064 . See also Boyle v. Bond, 88 U.S.App.D.C. 178 , 187 F.2d 362 ; Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772 ; Texas Co. v. Christian, 5 Cir., 177 F.2d 759 ; Cobb v. Lepisto, 9 Cir., 6 F.2d 128 .
I have made no attempt to review all the cases or to discuss the reasons given for the various rulings. Full and interesting discussions may be found in Judge Lindley’s opinion in Bucher v. Krause, 7 Cir., 200 F.2d 576 , certiorari denied 345 U.S. 997 , 73 S.Ct. 1141 , 97 L.Ed. 1404 , in Judge Holmes’ dissenting opinions in Sunray Oil Corporation v. Allbritton, 5 Cir., 187 F.2d 475, 477 ; Id., 5 Cir., 188 F.2d 751, 752 , certiorari denied 342 U.S. 828 , 72 S.Ct. 51 , 96 L.Ed. 626 , and in Judge Learned Hand’s opinion in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d. 463 . Perhaps the question will be definitely settled by the Supreme Court which has granted certiorari, 348 U.S. 950 , 75 S.Ct. 439 , in Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772 . For present purposes it is enough to say that the rule in federal jurisdictions recognizes that in an action for unliquidated damages, the question of excess of verdict is primarily one for the trial'court, and that an appellate court may not reverse merely because it is convinced that the verdict was excessive. If an appellate court may reverse for ex-cessiveness of verdict, it may do so only where the verdict is so grossly excessive or monstrous as to demonstrate clearly that the trial court abused its discretion in permitting it to stand. Brest v. Philadelphia Transportation Company, 3 Cir., 216 F.2d 331 ; Kilmer v. Gustason, 5 Cir., 211 F.2d 781 ; Chicago, Rock Island & Pacific Railway Co. v. Kifer, 10 Cir., 216 F.2d 753 , certiorari denied 348 U.S. 917 , 75 S.Ct. 299 .
Guided by those rules I cannot join in the majority opinion. Here we have a verdict which establishes that defendant maliciously and without probable cause instituted criminal proceedings against plaintiff. As a result plaintiff was arrested, searched, interrogated at length, and locked up in a precinct cell; taken in a patrol wagon to headquarters where he was photographed, fingerprinted, and again interrogated; returned to the precinct, again locked in a cell, and finally released on bail. All this covered a period of about six hours. Plaintiff was then compelled to go through the suspense of waiting for a trial and finally to defend himself in court. As a result of this he was nervous, could not sleep, could not eat, and lost weight. I do not detail the evidence because I think this brief outline is sufficient to show that the verdict of the *552 jury, though perhaps high, was not grossly excessive or monstrous. Nothing in the record indicates passion or prejudice on the part of the jury. The trial judge did not think the verdict excessive. There is no yardstick by which damages in this type of case may be measured. The jury were entitled to consider plaintiffs injury to reputation, his humiliation, his mental and emotional stress, and his uncertainty and worry while the proceedings were undetermined, with the possibility of' losing his employment. Melvin v. Pence, 76 U.S.App.D.C. 154, 159 , 130 F.2d 423, 428 , 143 A.L.R. 149 ; Soffos v. Eaton, 80 U.S.App.D.C. 306, 307 , 152 F.2d 682, 683 . The amount of the verdict must be left to the collective judgment of the jury under the supervisory right of the trial judge to set it aside or order a ffemittitur if he is convinced it exceeds reasonable bounds. In the early days- of this court, in an- action for malicious prosecution, we ruled that factual conflict on the issues of malice and probable cause should be left to the jury, because otherwise “ ‘trial by jury becomes trial by court.’ ” Viner v. Friedman, D.C.Mun.App., 33 A.2d 631, 633 , I think in this case that damages were also a factual question for the jury and the majority opinion invades the right of' trial by jury as well as 'the prerogative of the trial court.
I shall mention two other points made in the majority opinion. One is the statement that suits for malicious prosecution are not favored in law. I know of no such ruling in this jurisdiction. Recent decisions seem to me to indicate a contrary trend.. In Melvin v. Pence, supra, the law of malicious prosecution was extended to include wrongful institution of an administrative proceeding; and in Soffos v. Eaton, supra, the law of malicious abuse of process, closely akin to malicious prosecution, was broadened.
The majority seems to lay some stress upon the fact that there was no evidence of defendant’s financial worth. Possibly plaintiff could have introduced such evidence, but I .know of ho rule of law requiring him1 to do so.
For the reasons stated above, I dissent.