Courts have also set aside verdicts as showing on their face undue sympathy, (*) intemperance, () malice,() caprice,() mistake, (*) malevolence,() or evident improper motive. (") "In all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury, and not the opinion of the court, is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case."(") In Louisville & N. R.R. Co. v. Fox (*) counsel contended that a court cannot pronounce a verdict excessive, unless it be so great as to appear "at the first blush" to be outrageThe court says: "There is a large number of cases in which the language quoted, or language similar in import, has been used by this court; but in nearly if not all of the cases in which such language has been

ous.

R.R. Co., 3 E. D. Smith 103; Jennings v. Van Schaick, 13 Daly 7; Simpson v. Pitman, 13 Oh. 365; Wolff v. Cohen, 8 Rich. L. 144; Boyers v. Pratt, 1 Humph. 90; Moore v. Burchfield, 1 Heisk. 203; Nashville & C. R.R. Co. v. Smith, 6 Heisk. 174; Tinkle v. Dunivant, 16 Lea 503; Tennessee Coal & R.R. Co. v. Roddy, 85 Tenn. 400; Willis v. McNeill, 57 Tex. 465; Galveston v. Posnainsky, 62 Tex. 118; Farish v. Reigle, 11 Gratt. 697; Goodno v. Oshkosh, 28 Wis. 300.

(a) Waters v. Bristol, 26 Conn. 398.

() M'Connell v. Hampton, 12 Johns. 236; Travis v. Barger, 24 Barb. 614; Boyers v. Pratt, 1 Humph. 90; Moore v. Burchfield, 1 Heisk. 203.

(c) Wells v. Sanger, 21 Mo. 354.

(d) Jacksonville v. Lambert, 62 Ill. 519; Tennessee Coal & R.R. Co. v. Roddy, 85 Tenn. 400.

(*) Cyr v. Dufour, 62 Me. 20; St. Paul v. Kuby, 8 Minn. 154; Blum v. Higgins, 3 Abb. Pr. 104.

() Union P. R.R. Co. v. Hause, 1 Wyo. 27.

(*) St. Martin v. Desnoyer, 1 Minn. 156; Chapman v. Dodd, 10 Minn.

350; Shartle v. Minneapolis, 17 Minn. 308.

(1) Wilde, J., in Worster v. Canal Bridge Co., 16 Pick. 547.

(*) 11 Bush 495, 514.

used, the plaintiff was not only entitled to recover compensation, but was likewise entitled to such additional sum, by way of punishing the defendant, as the jury might deem right." In whatever form the rule is stated, it always involves a reasonable discretionary power in the court to set aside a verdict when its amount, in view of all the circumstances, is so great as to show that the jury, in arriving at it, must have been influenced by some improper motive.

§ 1322. Practice.-The objection to a verdict that it is excessive must be made by a motion to set it aside on that ground.(*) It cannot be considered on a simple appeal from a judgment.() The point must be made at the trial, for otherwise the verdict will not be disturbed, even if it is probably incorrect. () The usual practice upon setting a verdict aside because it is excessive is to order a new trial; but in some jurisdictions, *where the jury have given such excessive damages that the court feel bound to set aside the verdict, they will, instead of simply ordering a new trial, give the plaintiff the option of reducing the verdict to the sum which the court considers reasonable, and on his remitting the excess will deny the motion for a new trial, and this in actions of tort as well as on contracts.'(4) Or the court may

1 Diblin v. Murphy, 3 Sandf 19; Guerry v. Kerton, 2 Rich. L. 507; Young v. Englehard, 1 How. (Miss.) 19.

(*) Moody v. Camden, 61 Me. 264.

Alfaro v. Davidson, 40 N. Y. Super. Ct. 87.

(c) Fletcher v. Tayleur, 17 C. B. 21.

(4) Davidson v. Molyneux, 17 L. T. R. (N. S.) 289; Blunt v. Little, 3 Mas. 102; The Grecian Monarch, 32 Fed. Rep. 635; Fotheringham v. Adams Ex. Co., 36 Fed. Rep. 252; Kinsey v. Wallace, 36 Cal. 462; Illinois Cent. R.R. Co. v. Ebert, 74 Ill. 399; Collins v. Council Bluffs, 35 Ia. 432; Lombard v. Chicago, R. I. & P. R.R. Co., 47 Ia. 494; Missouri P. Ry. Co. v. Dwyer, 36 Kas. 58; Doyle v. Dixon, 97 Mass. 208, Craig v. Cook, 28 Minn. 232; Kennon v. Gilmer, 5 Mont. 257; Belknap v. Boston & M. R.R. Co., 49

send the cause back to a second jury on the quantum of damages alone. **

In New York the Court of Appeals may grant the privilege of reducing the verdict when the excess is due to the mistake of the court. () As to whether the general term can give the plaintiff the option of reducing the verdict, or of trying the case again, when the jury has erred in giving excessive damages, the decisions in that State have not been uniform. It has been held that the court in banc has no such power. (b) But the law is now settled otherwise, and in favor of this power.() Under the Louisiana Code the damages may be reduced by the court absolutely, without any choice on the part of the plaintiff.(") In Georgia it is held that counsel may voluntarily remit part of a verdict, pending motion for a new trial, and if the balance is not excessive the verdict will not be set aside. (©) But in Texas this power of reducing the verdict by the action of the court has been limited to those cases where the measure of damages is matter of law, upon the ground' that in other cases the

1 Boyd v. Brown, 17 Pick. 453.

? Thomas v. Womack, 13 Tex. 580.

N. H. 358; Union v. Durkes, 38 N. J. L. 21; Pendleton St. R.R. Co. v. Rahmann, 22 Oh. St. 446; Iron R.R. Co. v. Mowery, 36 Oh. St. 418; Yeager v. Weaver, 64 Pa 425; Burdick v. Weeden, 9 R. I. 139; Murray v. Buell, 74 Wis. 14; Steadman v. Venning, 22 N. B. 639.

(*) Mechanics' & T. Bank v. Farmers' & M. Nat. Bank, 60 N. Y. 40. () Moffet v. Sackett, 18 N. Y. 522; Cassin v. Delany, 38 N. Y. 178. (c) Collins v. Albany & S. R.R. Co., 12 Barb. 492; Clapp v. Hudson River R.R. Co., 19 Barb. 461; Potter v. Thompson, 22 Barb. 87; Murray v. Hudson River R.R. Co., 47 Barb. 196; Sears v. Conover, 3 Keyes 113; Hayden v. Florence Sewing Machine Co., 54 N. Y. 221.

(d) Black v. Carrollton R.R. Co., 10 La. Ann. 33; Mortimer v. Thomas, 23 La. Ann. 165; Haselmeyer v. McLellan, 24 La. Ann. 629: Cointement v. Cropper, 41 La. Ann. 303.

(*) Central R.R. Co. v. Crosby, 74 Ga. 737.

court has no right to substitute its opinion for that of the jury.

In Tennessee, in the case of Vaulx v. Herman,(*) the trial court was dissatisfied with the verdict; but upon the plaintiff remitting part of it, refused to set the verdict aside. This was held upon appeal to have been error; for the trial court, if dissatisfied with the verdict, should set it aside. This would seem to deny the right of the court in that State to give the plaintiff an option between a remittitur and a new trial. In Wisconsin the Supreme Court, in case of an excessive verdict, grants a new trial, no right of remittitur being recognized in that court; but the court indicates what amount of damages would not be thought excessive.(*)

On principle, however, the court should in no case grant the remittitur as of course; for the prejudice and passion of the jury may well have entered into the finding upon other issues besides the amount of damages. (©) The court should be well satisfied with the finding of the jury upon other issues before the verdict is allowed to stand upon a remittitur being entered. And in Arkansas it was held that where exemplary damages are wrongly included, the court is incompetent to order a remittitur.(©) In West Virginia it is said that a remittitur will not be ordered where the court has no basis for estimating the exact amount of the damages.(*)

§ 1323. Wrong measure of damages adopted by jury.— Where the verdict is evidently based upon an erroneous

(*) 8 Lea 687.

() Goodno v. Oshkosh, 28 Wis. 300; Patten v. Chicago & N. W. Ry. Co., 32 Wis. 524.

(©) Loewenthal v. Streng, 90 Ill. 74.

(4) St. Louis, I. & M. S. Ry. Co. v. Hall, 13 S. W. Rep. 138 (Ark.).

(*) Unfried v. Baltimore & O. R.R. Co., 12 S. E. Rep. 512 (W. Va.).

measure of damages, the court will not hesitate to set it aside. (*) And so where interest was not recoverable, the court directed it to be remitted. () And where a valid counter-claim was overlooked in estimating damages for the plaintiff, the verdict was not allowed to stand.(*) Where no damages are proved, and the case does not admit of exemplary damages, a verdict for anything more than a nominal sum will not be sustained. (4) And where exemplary damages have been improperly allowed by the jury, and the verdict exceeds the amount of actual damages, the court will interfere.(®)

Where the loss was entirely pecuniary, and the damages are much greater or less than the amount proved to be the plaintiff's loss, the verdict will be set aside.(') Where the jury is known to have included in the verdict an improper item of damage, the verdict will not be set aside if it can be cured by the plaintiff remitting the excess. (*) But if it is impossible to determine how the

(*) Creed v. Fisher, 9 Ex. 472; Ray v. Jeffries, 86 Ky. 367; Ellsworth v. Central R.R. Co., 34 N. J. L. 93.

() Connelly v. McNeil, 2 Jones L. 51.

(c) Havana, R. & E. R.R. Co. v. Walsh, 85 III. 58.

(d) Smith 7. Houston, 25 Ark. 183; De Briar v. Minturn, 1 Cal. 450; Oakley Mills Manf. Co. v. Neese, 54 Ga. 459; Cochrane v. Tuttle, 75 Ill. 361; Pittsburgh, C. & St. L. R. Co. v. Dewin, 86 Ill. 296.

(e) St. Louis, I. M. & S. Ry. Co. v. Hall, 13 S. W. Rep. 138 (Ark.); Toledo, P. & W. R.R. Co. v. Patterson, 63 Ill. 304; Farwell v. Warren, 70 Ill. 28; Becker v. Dupree, 75 Ill. 167; Hayes v. Parmalee, 79 Ill. 563; Kolb v. O'Brien, 86 Ill. 210; Cram v. Hadley, 48 N. H. 191.

(Jacksonville T. & K. W. Ry. Co. v. Roberts, 22 Fla. 324: Ray v. Jeffries, 86 Ky. 367; Cassell v. Hays, 51 Ill. 261; Nutter v. Junction R.R. Co., 13 Ind. 479.

(*) Bank of Kentucky v. Ashley, 2 Pet. 327; Toledo, W. & W. Ry. Co. v. Beals, 50 Ill. 150; Cyr v. Dufour, 62 Me. 20; Lambert v. Craig, 12 Pick. 199; Stickney v. Bronson, 5 Minn. 215; Sanborn v. Emerson, 12 N. H. 57; Pierce v. Wood, 23 N. H. 519; Willard v. Stevens, 24 N. H. 271; Odlin v. Gove, 41 N. H. 465; Cross v. Wilkins, 43 N. H. 332; Hatfield v. Central R.R. Co., 33 N. J. L. 251; Forbes v. Howard, 4 R. I. 364; Kavanaugh v. Janesville, 24 Wis. 618; Strong v. Hooe, 41 Wis. 659.