
    The Chester Park Co. v. Schulte, Admr.
    
      (No. 21196
    Decided March 27, 1929.)
    
      Mr. Bert H. Long, Mr. J. A. Culbertson and Messrs. Bogue, Hoffheimer & Pogue, for plaintiff in error.
    
      Mr. Owen T. Taphorn and Mr. Charles H. Elston, for defendant in error.
   Marshall, C. J.

This is a -wrongful death action. Ralph Schulte, a boy of 16 years, met his death while swimming in an artificial lake in Chester Park in the city of Cincinnati. Suit was brought against the park company, claiming that his death was caused by electrocution when he came in contact with an iron pole maintained in said lake for the purpose of carrying electric wires to light the swimming pool in the night season. The swimming pool is one of the attractions of the park, which is maintained as an amusement resort for profit, and an admission fee is charged persons using the pool. The action was brought under the provisions of Lord Campbell’s Act, as set forth in Section 10772, General Code, for the benefit of the next of kin.

The evidence is in conflict as to the cause of his death; it being argued in the court of common pleas and in the Court of Appeals that there was no evidence tending to prove negligence on the part of the park company. A motion to direct a- verdict in defendant’s favor at the close of plaintiff’s testimony was overruled by the court, and the motion was renewed at the close of all the testimony and was again overruled. That question is again earnestly argued in this court.

The voluminous record discloses a mass of conflicting testimony as to the cause of his death. Two weeks prior to his death, while playing ball, he was struck on the head by a pitched ball, and the testimony is in serious conflict as to the extent of the injury from that cause, but the jury might well have believed that it was only a temporary concussion, the effects of which had completely disappeared before the date of his death.

The testimony concerning the alleged electrocution is likewise in serious conflict. There was testimony on behalf of plaintiff that he was a good swimmer, and that there was no indication of physical distress prior to his seizing the pole, and that instantly upon coming in contact with the pole his head was thrown back and his body became rigid, and it required much force to loosen his grasp upon the pole. Other persons, who went to his rescue, felt a tingling sensation which they thought was caused by electric current in the water. There was evidence tending to show electrical burns upon portions of his body. On the other hand, the park company adduced evidence to show that the wires attached to the pole were all properly insulated, that the attachments were likewise properly insulated, and that there was no current in the wires during the daytime; £tnd, generally, the park company sought to prove that it was impossible for the pole to become charged with electrical current. There was further evidence tending to show that the wires connecting the pole with other attachments on the shore of the lake were sometimes swayed by the wind and became crossed, and that the insulation was not perfect. There was much expert testimony of physicians, each adducing separate theories of the causes of death. While the evidence was seriously in conflict, there was evidence of a substantial nature upon which a jury could properly render a verdict in plaintiff’s favor. The trial court was of the opinion that there was some evidence to submit to the jury. The jury rendered its verdict in plaintiff’s favor. The trial court refused to grant a new trial on the weight of the evidence. The Court of Appeals, on the review of the weight of the evidence, did not grant a new trial. This court is required to examine the record in view of the claim that there is no evidence tending to support the allegations of the petition and therefore no evidence to support the verdict itself, and upon such examination this court is of the opinion that there is conflicting evidence which was properly submitted to the jury, and, inasmuch as this court will not weigh the evidence, that feature of the case presents no ground for reversal.

There is another and more important question presented by this record. In the petition in error filed in this court, among many assignments of error, two grounds are stressed: First, “the damages assessed in said verdict are excessive, appearing to have been given under the influence of passion and prejudice”; second, “the said verdict and judgment is not sustained by sufficient evidence.” The same assignments of error are found in the petition in error filed in the Court of Appeals, and also in the motion for new trial after rendition of verdict and before entry of judgment. The verdict rendered by the jury was for $20,000. In overruling the motion for new trial, the court made the following statement in an opinion:

“The court is of the opinion that the verdict is sustained by sufficient evidence; is not contrary to the weight of the evidence nor contrary to law. * * * For the death the jury awarded the plaintiff the sum of $20,000. This amount, in the opinion of the court, was excessive, but the court is not able to say from the record that there is anything to indicate that the verdict was rendered under the influence of passion or prejudice. The measure of damages under our statute in this class of eases is not well defined and the court has only arrived at the conclusion that this verdict is excessive by comparison with other verdicts which have been held to be excessive by courts of superior jurisdiction in this state and in the same class of cases.”

In the entry overruling the motion for new trial, we find the following:

“It appearing to the court that the plaintiff and his counsel have agreed to a remittitur of five thousand dollars ($5,000.00) in accordance with the opinion of the court on defendant’s motion for a new trial, the court finds that said motion is not well taken.”

The Court of Appeals, in affirming the judgment, stated in its opinion:

“The main points of error stressed are that the verdict was excessive, appearing to have been given under the influence of passion or prejudice, and that the verdict was manifestly against the weight of the evidence. * * * We are of the opinion that the amount of the judgment is not supported by the evidence; neither do we agree with counsel that it appears to have been rendered under the influence of passion or.prejudice.”

In the journal entry in that court it is stated:

“The evidence will not support a judgment of $15,000, but would support a judgment of $10,000, and the court therefore holds said judgment to be excessive in the sum of $5,000 and that it should be modified by reducing it to the sum of $10,000 and costs. Defendant in error having consented to a remittitur of $'5,000, it is ordered that said judgment, as modified, should be affirmed.”

The subject of excessive verdicts and of remittitur of the excess with the consent of the judgment creditor is one which has been before the courts of Ohio during the entire history of the jurisprudence of the state. The subject was discussed and definite principles laid down before any statute had been enacted to govern the same. In Simpson v. Pitman, 13 Ohio, 365, it was held that, in an action for slander, a new trial will not be granted on the ground of excessive damages unless the amount be so large as to evince prejudice, partiality, or corruption in the jury. That principle was so declared upon the authority of many cases cited in the opinion. The judgment was set aside in that case because the court believed that passion and prejudice in fact entered into the deliberations of the jury. This principle was carried into the statute at the time of the enactment of the Civil Code in 1853, and is now paragraph 4 of Section 11576, General Code, which provides as one of the grounds for new trial: “Excessive damages, appearing to have been given under the influence of passion or prejudice.” Since that time a very large number of cases have been decided- by this court, in many of which verdicts have been reduced by order of remittitur, with the consent of the judgment creditor, where the reduction could be made by a process of mathematical calculation. We shall take no notice of those cases, because there seems to be no difference of opinion concerning the power of the court to order a remittitur under such circumstances. Aside from those cases, there are many others where the damages were necessarily the result of the opinion of the jury rather than the result of mathematical calculation. It will be found profitable to review the authorities in that line of cases.

One of the earliset cases is Pendleton Street Rd. Co. v. Rahmann, 22 Ohio St., 446. The syllabus of that case states:

“Where the damages assessed by a jury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the remittitur of the excess the condition of refusing to grant a new trial.”

In the opinion there was an elaborate discussion of the difference between those cases where the verdict was found to be excessive by a process of mathematical calculation and those cases where the verdict was based entirely upon the opinion of the jurors. That case was one of personal injuries, and the court nevertheless affirmed a judgment where there had been a remittitur of 50 per cent. It was stated, at page 450, that:

“The amount of the verdict is not such that the influence of passion or prejudice is inferable from its magnitude. It is not deducible from the facts spread upon the record. It is not shown by the finding of the court. We are not put in possession of any circumstances imposing the statutory obligation to vacate.”

Later, on the same page of the opinion, we find the following:

“So far as appears, then, the entering of judgment upon the verdict for its entire amount, would not have been disturbed by this court. But, with the consent of the plaintiff, judgment was entered for a smaller sum. If this had been done arbitrarily, without his assent, it might have been ground of exception and reversal at his instance. But can the defendant object? The only consequence to him is the substitution of a less for a larger sum, which might have been legally exacted, and cannot be held to prejudically affect him.”

That case has been approved and followed in a number of later decisions of this court and each subsequent approval more firmly commits this court to the judicial policy of giving trial courts and Courts of Appeals the power to order a remittitur with the assent of the judgment creditor, or, in the alternative, to grant a new trial. We are, of course, referring only to those cases where the verdict is an expression of the opinion of the jurors and where the results could not be reached by mathematical computation.

It must be admitted that the expressions of this court on this subject have not always been clear, or its conclusions always consistent, but the early leading case of Pendleton St. Rd. Co. v. Rahmann, supra, has never been overruled, or even criticized. Before that case was decided, and almost immediately after the enactment of Section 11576 (51 Ohio Laws, 105, Section 297), this court, in the year 1858, overruled a motion for leave to file a petition in error to review a judgment of the superior court of Cincinnati in a case where the jury rendered a verdict of $1,500, and the trial court ordered a remittitur in the sum of $450, which was consented to by the plaintiff. Durrell v. Boyd, Assignee, 9 Ohio St., 72. The motion was overruled without opinion, but it could only have been overruled on the theory that the court was entirely within its authority in ordering the remittitur with the consent of the plaintiff. That was a case where the damages were not the subject-matter of mathematical calculation.

In Sibila v. Bahney, 34 Ohio St., 399, a judgment had been entered in favor of a wife for loss of support by her husband by reason of the defendant’s having furnished intoxicating liquors to her husband, which liability was provided by statute. The verdict was in the sum of $5,000, and the trial court refused to grant a new trial, and the Circuit Court affirmed the judgment. This court overruled all of the assignments of error except that relating to the excessive award of damages, and on that point stated, at page 410, that it was satisfied that the damages were excessive:

“But we are satisfied that the damages are excessive, and therefore that the verdict is against the evidence. The period of time covered by the illegal acts of the defendant below was about two years and six months. The verdict was $5,000. * * * In view of the facts developed at the trial, fairly dedncible from the evidence disclosed by the bill of exceptions, we think the verdict was too large by twenty-five hundred dollars. A verdict may and ought to be set aside, as against the evidence (2 S. &. C. 1155, § 4), where the damages are excessive, unless the excess is remitted. If a remittitur in the above sum is entered by the plaintiff below the judgment will be affirmed; otherwise reversed, and a new incx^tl. ord.GrG¿ ^ ^

In Spear & Co. v. Fulton, 92 Ohio St., 523, 112 N. E., 1086, this court affirmed a judgment of the Circuit Court without opinion. In the trial court the action was one for damages which were not the subject-matter of computation and the verdict was in the sum of $3,500. With the consent of plaintiff it was reduced to $2,000, and judgment entered. On error being prosecuted to the Circuit Court, it was argued in that court by the plaintiff in error that the trial court had stated in rendering its opinion that the verdict had been reached by the jury under the influence of passion and prejudice. That finding was not carried into the journal entry. The Circuit Court therefore held that, the trial court having declined on defendant’s request to set forth that finding in the journal entry, the Circuit Court could not supply it and bring it into the record, and that therefore the judgment must be affirmed. In affirming the judgment of the Circuit Court without opinion this court in that case affirmed the doctrine that the situation is controlled by the court finding or not finding as a fact that the jury was influenced by passion and prejudice.

In Ohio Traction Co. v. Shearer, 97 Ohio St., 332, 120 N. E., 878, and in Capital City Dairy Co. v. Amicon, 99 Ohio St., 443, 126 N. E., 925, the court of common pleas had in each instance reduced the verdict with the consent of the plaintiff, and in each instance did so on the ground that the verdict was excessive, but did not in either instance make a finding that the jury was not influenced by passion and prejudice. In each case the Court of Appeals merely affirmed the judgment. In each case this court affirmed the Court of Appeals upon the authority of Pendleton St. Rd. Co. v. Rahmann, supra.

In T., C. & O. R. Rd. Co. v. Miller, 103 Ohio St., 17, 132 N. E., 156, the jury rendered a verdict for personal injury damages in the sum of $75,000. The trial court, in ruling on the motion for new trial, held that the verdict, “though excessive, does not appear to have been given under the influence of passion or prejudice and the plaintiff having remitted from the amount of the verdict all in excess of $45,000.00, said motion is overruled.” The Court of Appeals affirmed the judgment. In this court the question of the right to enter a remittitur with the assent of the plaintiff was earnestly argued in connection with alleged errors in the charge, and it was particularly stated in the per curiam opinion:

“If the sympathy of the jury is exhibited in the verdict to such extent as to show passion or prejudice, and excessive damages result therefrom, the law of Ohio makes it the imperative duty of the court to set aside the verdict.”

It will thus be seen that, although the Court of Appeals refused to reverse the judgment, this court did so on the ground of excessive damages, appearing to have been given under the influence of passion and prejudice. In this respect the court followed the course taken by this court in Sibila v. Bahney, supra, although that case was not referred to' in the opinion. In both cases this court could only have reached the conclusions it did by giving consideration to and exercising an independent judgment upon the evidence.

In Toledo Railways & Light Co. v. Paulin, 93 Ohio St., 396, 113 N. E., 269, it was decided that:

“A reviewing court, upon finding that the verdict of a jury assessing damages for personal injury is such in amount that it is not supported by the weight of the evidence, and therefore excessive, may remand the cause for a new trial, but is not authorized upon such ground to modify the judgment.”

The opinion in that case does not cite a single authority. It is clearly out of harmony with all of the other adjudications following the case of Pendleton St. Rd. Co. v. Rahmann, supra.

In Silverglade v. Von Rohr, 107 Ohio St., 75, 80, 140 N. E., 669, this court again planted itself squarely and firmly upon the authority of Pendleton St. Rd. Co. v. Rahmann, supra. The opinion in that case reviews at some length the authorities, and reaches the conclusion that the doctrine of the Rahmann case is supported by the weight of authority not only in this state but in the other states of the Union.

In Alter v. Shearwood, 114 Ohio St., 560, 151 N. E., 667, this court again definitely reaffirms the doctrine of the Rahmann case by the concurrence of six jildges, and further declares that a consent remittitur does not violate any constitutional provisions. It is particularly stated that the Court of Appeals has the power to modify a judgment by reducing its amount with the consent of the plaintiff, and points out that the right to modify is specifically authorized by Section 6, Article IV, of our Constitution.

In a very large number of reported cases decided by the Circuit Courts and Courts of Appeals of this state remittiturs have been ordered with the consent of plaintiff, following the decisions of this court, and in at least four reported cases verdicts and judgments have been reduced in personal injury cases. In many of them the reductions have amounted to a very large proportion of the original verdict. Wabash Ry. Co. v. Fox, 20 C. C., 440, 11 C. D., 148; American Contracting Co. v. Sammon, 6 C. C. (N. S.), 121, 17 C. D., 337; Spear & Co. v. Fulton, 3 Ohio App., 40; Cleveland Ry. Co. v. Burianek, 11 Ohio App., 168.

During the sixteen years this court has been exercising jurisdiction in motions to certify, it is fair to assume that hundreds of cases involving a remittitur have been argued before this court upon motions to certify, where motions have been denied, and it is also fair to assume that in other hundreds of cases judgments have been reduced in personal injury cases by the trial courts of this state, and by the Courts of Appeals, where error has not been prosecuted therefrom. During the short period that the instant case has been pending in this court, not less than a dozen such cases have been before this court, and motions to certify the record have been overruled. The doctrine of reducing verdicts and judgments on the ground that they are excessive, but where the court finds that the jury was not influenced by passion and prejudice, must be said to have become firmly fixed in Ohio jurisprudence.

The principal argument made against reducing a verdict of a jury is that it results in substituting the judgment of the court for that of the jury in matters where it is the settled policy of our jurisprudence that the amount should be left to the determination of a jury. That argument has been so often answered in the negative by the courts of Ohio that it must be said that the subject should now be considered beyond further debate. It is after all only a question of policy. The subject is not circumscribed by any statutory or constitutional provisions, and the courts of each state are at liberty to determine their own separate policies. There is a division among the states of the Union on this subject. A majority of them favor the policy of permitting the reduction of verdicts and judgments. It is entirely within the province of this court to make a complete change of that policy. Some of the members of this court have never favored the present policy. Other members, perhaps, who have favored it in the past, feel disposed toward a reversal. Surely no reversal should be made by a divided court. It is much more to be desired that the fixed policy of the past become the settled policy of the state and be placed beyond the pale of future controversy. It is likewise very much to be desired that some very definite rules be laid down by this court for the guidance of the trial courts and the Courts of Appeals, as well as for the bar of the state, in order that there may be uniformity of action in the trial courts and in the Courts of Appeals.

There would be no value in an elaborate discussion of the decisions of the courts in the various jurisdictions throughout the United States. A reference to the authorities has been made in the opinion in Silverglade v. Von Rohr, supra, and in addition to that citation we might properly refer to the editorial annotations found in 53 A. L. R., 779, and to the numerous cases therein cited and commented upon. The subject of increase and reduction of verdicts is largely one of policy, in which the soundness or unsoundness of legal principles has but little part. While the courts of the various jurisdictions are not in full harmony upon the questions of policy, there are some legal principles upon which they are in perfect unanimity. The authorities are unanimous in holding that, in an action for unliquidated damages, a court is powerless to reduce a verdict rendered by a jury and render a judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered. This is for the very plain and sufficient reason that a reduction under such circumstances invades the province of the jury. Again, the decisions are quite uniform, though not unanimous, upon the proposition that a new trial may be denied or a judgment affirmed in an error proceeding, on condition of a remittitur with the consent of the plaintiff, over the objection of the defendant. With both of these propositions the majority of this court are in full accord. The decisions of the courts of this state on this subject are very nearly in full harmony, and, except for a very few decisions, our task in the instant case would be a comparatively simple one.

The Paulin case, supra, is contrary to the plain mandate of Section 6, Article IV, of the Ohio Constitution. That section defines the jurisdiction of the Court of Appeals. The first sentence of that definition is as follows: “The court of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery-cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record,” etc. In the Paulin case the Court of Appeals had unanimously found “that no part of the damages allowed by the jury as shown by their verdict, was the result of passion or prejudice on the part of the jury.” The Court of Appeals was not in unanimous accord on the question of the verdict being excessive, and was therefore in doubt about the right to reverse the trial court, because the question of excessive damages involved a consideration of the weight of the evidence. This doubt was raised by another provision of Section 6, Article IV, relating to the jurisdiction of that court: “No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the Court of Appeals on the weight of the evidence,” etc. Inasmuch as a reduction of a verdict in an action for unliquidated damages necessarily involves a ¡consideration of the weight of the evidence, two judges of the Court of Appeals clearly lacked authority to reverse. But did they lack j authority to modify the judgment? The general provision of Section 6, Article IV, first above quoted, confers general power upon the Court of Appeals to i review, affirm, modify, or reverse judgments. The special provision last above quoted only relates to the right to reverse, and has special application to the weight of evidence. The special provision must be regarded as an exception to the general provision. The special provision makes no limitation upon the right to affirm or modify. In the opinion of a majority of this court, as at present constituted, the Court of Appeals might have reduced the verdict with the assent of the plaintiff. Upon a review of the judgment of the Court of Appeals this court should have remanded the cause to the Court of Appeals with instructions to exercise its independent judgment upon the weight of evidence, and either to reverse, or to modify with the assent of the plaintiff, as its judgment might dictate. A modification, where the subject is susceptible of mathematical calculation, does not involve the element of opinion. The weight of evidence is not involved. It is primarily and solely a legal question, and a modification can be made by the trial court or any reviewing court with the consent of the prevailing party. Where the subject involves the opinions of the jurors, and calls for the exercise of their judgment, and brings into action their experience and knowledge, the modification can only be made with the consent of the prevailing .party; and, if consent is not given, the verdict must be set aside.

The subject of reduction of verdicts and judgments in actions for unliquidated damages is coming before courts of review with ever-increasing frequency. It is therefore time, and high time, that this court should lay down some principles and declare some policies for its own future guidance, and for the guidance of trial courts and intermediate courts, in order that the bar and bench may have definite rules for their guidance, and in order that the increasing volume of error proceedings growing ont of these questions may be forestalled. We have therefore formulated the following rules:

(1) In an action for unliquidated damages, neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent to such reduction of the party in whose favor the verdict was rendered.

(2) If a trial court in an action for unliquidated damages finds that the verdict is excessive, and that it was rendered under the influence of passion and prejudice, it has no alternative except to set it aside and grant a new trial.

(3) If a verdict in an action for unliquidated damages is in the opinion of the trial court excessive, but not appearing to be influenced by passion or prejudice, the court may with the assent of plaintiff reduce the verdict by remittitur to any amount supported by evidence.

(4) Neither the trial court nor any reviewing court has power or authority to réduce a verdict on any grounds without the assent of the prevailing party, unless the undisputed testimony shows an error in mathematical calculation.

(5) The Court of Appeals has the same unlimited power and control of verdicts and judgments as the trial court, and may weigh the evidence and exercise an independent judgment upon questions of excessive damages, and, when no passion or prejudice is apparent, may modify and affirm the judgment by ordering a remittitur with the’ consent of the prevailing party.

(6) If the Court of Appeals in an error proceeding in an action for unliquidated damages finds that the verdict was rendered under the influence of passion or prejudice, it has no alternative except to reverse and remand for a new trial.

The charge of the court in the instant case on the measure of damages was entirely free from error:

“You may award such damages as you may think proportionate to the pecuniary injury resulting from the death to those for whose benefit the action was brought, that is to say, you may award such damages as the persons for whom this action is brought might reasonably have been expected to have received from the earnings of the deceased had he lived and from his estate at his death.”

This charge was very carefully patterned after the provisions of Section 10772, General Code. In actions for wrongful death, there are no definite standards for determining the amount which the beneficiaries might reasonably expect to receive, and the amount is purely matter of opinion, and in no sense matter of computation. This court in the case of Cincinnati Street Ry. Co. v. Altemeier, Admr., 60 Ohio St., 10, 53 N. E., 300, has very definitely declared the measure of damages in wrongful death cases. After declaring that nothing can be allowed on account of bereavement, mental suffering, or punitive damages, the syllabus in that case states:

“Any evidence which tends to show the amount of such pecuniary injuries sustained by such beneficiaries, or which tends to show that such beneficiaries received financial aid from the deceased during his lifetime, and that they would likely have continued to receive such aid, had he lived, is competent. And for the purpose of showing that such beneficiaries needed and would likely have received such aid from the deceased, the circumstances, age, health and means of support of the beneficiary, if a parent or next of kin of the deceased, as well as the age,' health, disposition and thrift of the deceased may be shown.”

All these things enter into the question of pecuniary injury. The opinions of jurors might differ on each and all of these elements, and the trial court and reviewing courts might easily differ from the jury. Such differences of opinion do not necessarily indicate that the jury was influenced by passion or prejudice where the verdict was larger in amount than the trial court or a reviewing court would have rendered on the same evidence. The trial court did reduce the verdict with the consent of plaintiff. On review, the Court of Appeals made a further reduction with the consent of plaintiff.

Each of the lower courts having ordered a remittitur, with the consent of the plaintiff, this court will not substitute its judgment for either that of the jury or the lower courts, and, finding no error in this record, the judgment of the Court of Appeals will be affirmed.

Judgment affirmed.

Jones, Day and Allen, JJ., concur.

Matthias, J.,

dissenting. I dissent from the judgment of affirmance. I am of the opinion, however, that the case was properly submitted to the jury by the trial court, and that there was no error in that respect. Evidence was adduced in support of the specifications of negligence set forth in the petition, from which a reasonable inference of such want of due care could be drawn and that tbe injury causing death was the proximate result thereof. The facts appearing in the record disclose a situation from which a rational inference may be drawn that the death of Schulte resulted from a shock caused by an electric current conducted to the swimming pool, and there is evidence indicating that the conditions complained of had been present and observable at intervals prior to the date of Schulte’s death, of which conditions no notice or warning had been given, and from which danger no protection had been provided. The theory of the defendant, that the death of Schulte was the result of a cerebral hemorrhage, which was caused by being hit on the head by a pitched ball while participating in a game of baseball two weeks prior to his death, was also supported by substantial evidence. It is quite apparent that from the evidence adduced different minds might reasonably arrive at different conclusions, and the court therefore very properly submitted to the jury the question of negligence on the part of the defendant company in the respects charged and the question whether that negligence was the proximate cause of Schulte’s death.

The court is unanimous upon the proposition that the issues of fact in this case should be, as they were, submitted for the consideration and determination of the jury. We part company, however, upon the second proposition, which involves the right and authority of the court, without limitation and without restriction, to modify the verdict of the jury. This court has been and is now quite insistent that the issues of fact in such case be submitted to the jury. Consistency would require, not only that issues of fact be submitted to, but that they be determined by, the jury. The amount of damages, as well as the presence or absence of negligence, is a question of fact. The record in this case discloses that the trial court found the verdict was excessive to the extent of one-fourth the amount thereof, and required a remittitur accordingly, which was assented to, and judgment rendered for $15,000. The Court of Appeals found that the “evidence will not support a judgment of $15,000.00, but would support a judgment of $10,000.00.” That court thereupon modified the judgment by reducing it to $10,000.

There is good reason for the view that, in a case such as this one, it is the duty of the court, upon finding that the verdict returned by the jury is such in amount that it is not supported by the- weight of the evidence, to set aside the verdict and grant a new trial. The situation is entirely different in a case where it is apparent that the verdict includes an award for a claim which was not supported by the evidence, for in such case there is a substantial basis for modification, and the correction is a matter of mathematical computation from the evidence adduced, which can readily be made by the trial judge. Though there be disagreement upon that proposition, certainly there should be no disagreement upon the proposition that, in any case where a verdict returned 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.

The precise question presented here is whether from the gross excessiveness of the verdict, as found by the lower courts, it does not necessarily follow that such verdict was given under the influence of passion or prejudice. It is expressly required by Section 11576, General Code, that the verdict shall be vacated and a new trial granted if excessive damages appear to have been given under the influence of passion or prejudice. How shall it be made to appear that a verdict concededly grossly éxcessive was given under the influence of passion or prejudice? Can it be disclosed otherwise than by the amount of the verdict? That is the only method of expression by the jury. Its improper mental attitude could be indicated in no other way except possibly by haste in arriving at and reporting its conclusion. In the recent case of S. S. Kresge Co. v. Fader, 116 Ohio St., 718, 158 N. E., 174, it was pertinently observed by the judge who wrote the opinion that, “when a trial court reaches the conclusion that a verdict returned by a jury in a personal injury case is 33 1-3 per cent, 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.” I commend the conclusion recently announced by the Court of Appeals of Cuyahoga county in the case of Cleveland Ry. Co. v. Mueller, 31 Ohio App., 488, 166 N. E., 391. That action was for personal injuries in which the trial court had directed a remittitur of half the amount of the verdict, which was readily assented to by the plaintiff. There was no announced finding by the trial court upon the subject of passion or prejudice, but the Court of Appeals held that it was properly inferable that such reduction of the verdict was because it had been rendered under the influence of passion or prejudice.

It is difficult to see how otherwise than from such influence of passion or prejudice the jury could have found and returned a verdict of double the maximum amount found by the Court of Appeals to have been supported by the evidence. The reversal of a judgment on such grounds need not be predicated upon some error in the trial which may have improperly influenced the verdict. That would be a separate ground of reversal. The prejudical character of such error may be reflected in the size of the verdict, but, regardless of such error, if it appear that the jury was actuated by passion or prejudice, rather than by reason, in reaching its determination, it is the duty of the court to reverse that judgment and remand the case for a new trial.

The trial court or reviewing court, fludiug that a verdict is so excessive in amount that it could not have been the result of a candid and careful consideration of the evidence adduced, may infer that passion or prejudice influenced the jury, and either court, being unable to otherwise account for such excessive verdict, should ascribe it to the passion or prejudice of the jury and grant a new trial. It is obvious that under such circumstances the parties are entitled to a new trial.- If the amount of the verdict be affected by passion or prejudice it may be that the finding upon the issue of negligence, or of the real cause of the injury, was likewise influenced and was also the result of improper considerations. It is well settled that under such circumstances to merely reduce the judgment to such an amount as the court thinks reasonable would be to substitute the opinion of the judge for the verdict of the jury, and would deprive the party of the right to have the issues of fact determined by a jury not influenced in its deliberations by any improper motive.

This case was properly submitted to a jury. There was never any agreement by the parties to submit it to the trial judge, and the defendant has been at all times insistent upon the right to have the issues of fact, not only submitted to a jury, but determined by á jury. The judgment should have been reversed and a new trial granted.

Kinkade and Robinson, JJ., concur in the dissenting opinion.  