set aside as excessive.31 Where, besides some injury to his property, amounting to $601.50, the plaintiff lost the toes on his left foot, the jury gave a verdict for $5,875. The court said: "We must say that the damages awarded are out of all character as compared with the injury done, and we cannot sanction it. At first blush, it seems to be the result of passion and prejudice, and not of cool determination, and it must be set aside." 9932 33 § 7355. Severe Injuries-Unconscionable Verdicts. And even though an injury is very severe the court will not sustain a verdict clearly disproportioned to it, and plainly opposed to the evidence.31 An arm or a leg may, in one sense, be priceless, but the law compensates chiefly for the pecuniary injury. Thus, a brakeman was run over by an engine; both legs were crushed, and afterward necessarily amputated. The jury gave him $18,000. The court said: "$18,000 is so large a sum that we regard it excessive. That amount, put at interest at the highest legal rate, would produce annually $1,800,more, by a large sum, than is obtained by the most skillful mechanics for their labor, while appellee, in pursuit of his calling as a brakeman, could probably not have received more than one-third of that sum. It is true that appellee has received a grievous injury, and has been rendered almost unfitted for business, but the railroad company should not be required to render to him a sum which would produce a greater income than he could have earned had he not been injured. * But we can see that, after deducting physicians' bills, loss * 31 Decatur v. Fisher, 53 II. 407. See also, Chicago v. Kelly, 69 Ill. 475; Chicago v. Langlass, 52 Ill. 256. 332. Petition alleged $250 for medical aid and nursing, and evidence showed only an expenditure of $50. Verdict for $200, in addition to the "Chicago &c. R. Co. v. McKean, $50, must be remitted or it will be 40 Ill. 218. 33 As, $12,500 for personal injuries to an employé fifty-two years of age, and unable to earn full wages, though he was seriously injured; but the verdict will be affirmed on a remittitur of $7,500; Purcell Mill &c. Co. v. Kirkland, 2 Ind. Ter. 169; s. c. 47 S. W. Rep. 311. set aside as excessive: Cullar v. Missouri &c. R. Co., 84 Mo. App. 347. Where the services of a minor injured by the negligence of a railroad company would be worth $100 per year from his tenth or twelfth year until majority, a verdict in favor of the father for $5,000 is excessive: Hurt v. St. Louis &c. R. Co., 94 Mo. 255; s. c. 13 West. 233, 237; 7 S. W. Rep. 1, 5. Bill of particulars alleged damages in the sum of $273.60, of which the item of $150 for personal injury was waived at the trial, and damages on other items $30 less than *Badgley v. St. Louis, 149 Mo. 122; s. c. 50 S. W. Rep. 817 (exceeded plaintiff's own evidence). A verdict for $7,500 upon evidence which would not warrant a verdict in excess of $1,500 is so excessive as to show mistake or prejudice on the part of the jury, and should be claimed,-$130.36 damages unjustiset aside: Louisville &c. R. Co. v. Whitley Co. Ct. (Ky.), 20 Ky. L. Rep. 1367; s. c. 49 S. W. Rep. fied: Ostrosky v. Heinle, 37 Misc. (N. Y.) 828; s. c. 76 N. Y. Supp. 887. of time, and other expenses, including counsel fees, the sum left would, at interest, produce a sum largely above any amount he could have expected to earn had he not been disabled. This verdict seems to have been the result of passion or prejudice, and not of calm and dispassionate reflection. The finding must be in proportion to the injury sustained; and when it is greatly excessive, as it is in this case, it will be set aside." So, a verdict of $20,000 in favor of a person greatly injured by the fall of a block system cabin in which he was at work was held to be so large as to suggest that it was due in part to the supposed wealth of the defendant, a railroad company, by whom he was employed, and it was reduced to $15,000. In another case, a verdict of $15,000 for an injury to a minor, not entirely impairing his capacity to work, where his former earning capacity was not clearly shown, was held so excessive as to warrant the inference that it was the result of passion or misconduct of the jury.37 $7356. Quantum of Exemplary Damages. From the nature of exemplary damages, it follows as a matter of course that the amount to be found must be left more completely to the discretion of the jury than in cases where the damages are purely compensatory.38 And an appellate court will hesitate to set aside a verdict as excessive in a case where the jury have a right not only to find damages by way of compensation but also to award exemplary damages.39 § 7357. Allowance of Exemplary Damages where Compensatory Damages Only are Proper.-If the case is one for compensatory damages only, and it appears that the jury gave exemplary or punitive damages, this will justify the court in setting aside the verdict.* § 7358. Double Damages.-Double damages are not to be allowed for the same injury unless authorized by statute. The principle is Chicago &c. R. Co. v. Jackson, 55 Ill. 497. See also, Chicago &c. R. Co. v. Fillmore, 57 Ill. 265; Illinois &c. R. Co. v. Ebert, 74 Ill. 399. A verdict awarding a sum as damages for injuries to a railroad employé, which only partially disable him and do not impair his general health or comfort, the mere interest on which will exceed the highest wages he ever earned, will be set aside as excessive unless it is reduced to a reasonable amount by remittitur: Brown v. Southern Pac. R. Co., 7 Utah 288; s. c. 26 Pac. Rep. 579. 36 Hesketh v. New York &c. R. Co., 37 App. Div. (N. Y.) 78; s. c. 55 N. Y. Supp. 898. 37 Chitty v. St. Louis &c. R. Co., 148 Mo. 64; s. c. 49 S. W. Rep. 868. 38 Myers v. San Francisco, 42 Cal. 215; Owen V. Brockschmidt, 54 Mo. 289; Kountz v. Brown, 16 B. Mon. (Ky.) 577. 39 Newport News Co. v. Dentzel, 91 Ky. 42; s. c. 14 S. W. Rep. 958; 12 Ky. L. Rep. 626. 40 Chicago &c. R. Co. v. McKittrick, 78 Ill. 619; Chicago v. Kelly, 69 Ill. 475; Chicago v. Langlass, 52 Ill. 256; Decatur v. Fisher, 53 Ill. 407; Nashville &c. R. Co. v. Smith, 6 Heisk. (Tenn.) 174; Goodno v. Oshkosh, 28 Wis. 304. oftenest invoked where the charge to the jury is so worded as to authorize the jury to allow a double recovery for the same element of damages; and where the instructions bear this construction the error is clearly prejudicial. An instruction was held vulnerable on this ground which told the jury that they might allow the plaintiff such sum as would reasonably compensate him for the injuries sustained, if any, and, if the injuries were found to be permanent, they might find "in addition" such sum as would be a fair compensation for his diminished capacity to labor.42 The charge in another case that the jury should include in the damages whatever the evidence showed the plaintiff had lost in being rendered unable to work or less able to work, and also what he had paid out for medicines and doctors' bills by reason of the injuries, and also a reasonable pecuniary compensation for the bodily injuries, disabilities, pains, suffering and distress caused by the accident, was likewise held objectionable as authorizing a double recovery. In an action to recover damages for the loss of an eye, the jury were instructed "that, if the plaintiff was prevented from pursuing his ordinary calling, and thereby lost time from his business," the loss of time should be included, and also that, if the plaintiff's capacity to labor and earn money in the future has been diminished, then he should be allowed "for the diminished capacity to labor and earn in the future." A verdict was returned for $20,000. It was held that, while the charge, if strictly analyzed, might not allow a double recovery for the same element of injury, yet, in view of its wording and the excessive verdict, it could not be said that the jury were not misled thereby. But the intent to authorize double damages must be clear.45 Thus, it was held that an instruction did not authorize double damages which permitted a recovery for any future impairment of plaintiff's health or mind, and also "A charge that in assessing damages for plaintiff in an action for personal injuries the jury could consider his personal injury, his "pain and suffering" in consequence, "and the permanent injury sustained by him," is calculated to confuse the jury and give double damages for the same loss: Missouri &c. R. Co. v. Hannig, 91 Tex. 347; S. c. 43 S. W. Rep. 508; rev'g s. c. 41 S. W. Rep. 196. St. Louis &c. R. Co. v. Smith (Tex. Civ. App.), 63 S. W. Rep. 1064. *St. Louis &c. R. Co. v. Highnote, -Tex. Civ. App. —; s. c. 74 S. W. Rep. 920. 44 "Missouri &c. R. Co. v. Flood (Tex. Civ. App.), 70 S. W. Rep. 331. 45 St. Louis &c. R. Co. v. Stonecypher, 25 Tex. Civ. App. 569; s. c. 63 S. W. Rep. 946. Thus, an instruction authorizing a recovery for the actual injury to plaintiff's person, and the pain already endured or to be endured in the future was held not erroneous, as authorizing a double recovery, in connection with another instruction that the jury must determine the amount which would compensate plaintiff in consideration of the character of the injury and the pain endured and to be sustained in the future: Beaver v. Eagle Grove, 116 Iowa 485; s. c. 89 N. W. Rep. 1100. 48 any impairment of his capacity to labor and earn a livelihood for himself and family, as two different elements of damages were in the mind of the court; and such was the case with another instruction that, if the jury found for the plaintiff, they should allow him such a sum as would compensate him for the loss of time, for the expenses of doctors' bills, etc., for any physical pain or mental anguish which he had endured, for such as would be caused by the injury in the future, and also for the probable effect of such injuries in impairing his ability to earn a livelihood in the future.47 In still another case the doctrine was held not to have been infringed by an instruction authorizing a recovery by a passenger for exposure to inclement weather, and also for such other dangers as might result from "serious injury," etc., from such exposure, the evidence on the trial tending to show temporary discomfiture and pain, and also that serious injury and illness subsequently resulted from the exposure. In an action by an employé against a railway company for injury resulting from a defective hand hold, the court charged that if the jury found for the plaintiff, and that his injuries were permanent, they should allow him such sum as would compensate him, taking into consideration mental and physical pain suffered, consequent upon his injuries, and his diminished capacity to labor and earn money in the future. It was held that such charge gave the true measure of damages, and did not allow double damages. Where the plaintiff was injured through the defendant's negligence, and alleged that the plaintiff's time was worth $150 per month, for which he asked $385 damages, and that the injuries had diminished the plaintiff's capacity to labor and earn money, and that his loss of time and personal injuries had damaged him in the sum of $10,000, for which he prayed judgment,—it was held that an objection to the petition as asking judgment for the plaintiff's loss of time twice was not well taken.50 a § 7359. Statutory Double Damages. In those instances where, under a statute, the plaintiff is entitled to recover double damages, the proper mode of ascertaining the amount of the recovery is for the jury to find the damages, and the court to double the sum so found and enter judgment therefor.51 But when the court below has er 46 Central Texas &c. R. Co. v. Luther, 32 Tex. Civ. App. 309; s. c. 74 S. W. Rep. 589. 47 Gulf &c. R. Co. v. Robinson (Tex. Civ. App), 72 S. W. Rep. 70. 4 Pecos &c. R. Co. v. Williams (Tex. Civ. App.), 78 S. W. Rep. 5. 49 Galveston &c. R. Co. v. Jones, 29 Tex. Civ. App. 214; s. c. 68 S. W. Rep. 190. 50 St. Louis &c. R. Co. v. Stonecypher, 25 Tex. Civ. App. 569; s. c. 63 S. W. Rep. 946. a See Vol. II, §§ 2223, 2224. 51 Broschart v. Tuttle, 59 Conn. 1; s. c. 11 L. R. A. 33; 21 Atl. Rep. 925; Clark v. Worthington, 12 Pick. (Mass.) 571; Lobdell v. New Bedford, 1 Mass. 153; Swift v. Applebone, 23 Mich. 252; Brewster v. roneously excluded the proof justifying double damages, the appellate court, of course, will not double the amount found and order judgment for the sum, since it cannot know what the evidence rejected would have shown.52 Such a $7360. Reduction of Verdicts by the Court-Remittitur.-The reduction of excessive verdicts to a sum which seems to the court to be just and reasonable is a very general practice. It is effected thus: The court, whether trial or appellate, if there be no other error than the excess of damages, intimates to the plaintiff that unless the verdict is reduced to a sum named, by a voluntary remittitur entered by him, the verdict will be set aside and a new trial ordered. proceeding has the appearance, upon the record, of being voluntary on the part of the plaintiff. The principle underlying such action of the court has been doubted. The New York Supreme Court say: "We are aware that cases can be found in which the court has sometimes set aside and sometimes reduced verdicts. Upon what principle the latter has been done has never been very. apparent. If the court reduces a verdict, what does it do which differs from an assessment by it of the damages in the action? A jury, and a jury only, under the laws of our State, unless otherwise agreed upon by the parties, is the body to whom that duty is confided, and the law which enables a judge to fix and limit a recovery after verdict would, it seems to me, apply equally as well to a case before verdict. In either, the court, and not the jury, assess the damages, and upon what principle it may do so is not to my mind clear. If the verdict is so excessive as to justify the conclusion that it is the result of partiality, prejudice, or corruption, it should be set aside, and a new jury should, in my opinion, assess the damages. When there is no assessment by a jury (for a pretended one, founded not upon an honest ascertainment and computation of loss, but resulting from spite or malice against the defendant, or from a desire to favor the plaintiff, is none in fact), the court ought not to ascertain and declare a result, the right to do which has been wisely committed to another body. Without formally deciding that the judiciary is without power to reduce the amount of a verdict in an action for a personal injury, a conclusion which is against precedents established by wise and upright judges, still, for Link, 28 Mo. 147; Wood v. Railroad 246; Galvin v. Gualala Mill Co., 98 |