
    Schendel v. Bradford, Admr.
    
      Negligence — Excessive verdict — Finding involves weighing of evidence, when — Grounds for new trial — Section 11576, General Code — Reversals by reviewing court — Excessive verdict without passion or prejudice — Procedure where trial court ordered remittitur — New trial — Excessive verdict with passion and prejudice.
    
    1. In actions for wrongful death the amount of pecuniary in- . juries sustained is an issuable fact, and, when denied, must be determined from the evidence peculiar to each case. If the damages are found to be excessive by a reviewing court, such finding involves the weight of the evidence.
    2. The right and authority of a reviewing court to weigh the evidence in passing upon a trial court’s action on a motion for a new trial grounded on subdivision 6 of Section 11576, General Code, are not limited or restricted by reason of the fact that the motion is also grounded on subdivision 4 of the same section.
    3. A reviewing court, having the power and authority to reverse on the weight of the evidence, finding the judgment and verdict excessive, but not the result of passion or prejudice, may reverse if the judgment and verdict are not sustained by sufficient evidence.
    4. Where a reviewing court finds the verdict excessive, and that a judgment entered for the balance after remittitur of a part of the amount thereof is also excessive, it becomes the duty of the court, if further remittitur is not required and consented to, to remand the cause for new trial.
    5. If the trial or reviewing court finds the verdict or judgment to be excessive, appearing to be induced by passion and prejudice, a new trial should be awarded.
    (No. 17164
    Decided December 29, 1922.)
    Certified by the Court of Appeals of Cuyahoga county.
    
      It is only necessary to state a few facts presented by tbe record in order to determine tbe legal questions involved. In the trial court the administrator brought an action for the wrongful death of a boy about six years of age. The decedent left as his beneficiaries, his parents, a brother aged 14, and a sister aged 12 years. In the trial-court a verdict was rendered for plaintiff in the sum of $5,880. The defendant moved for a new trial upon various grounds, among others, that the verdict was not sustained by sufficient evidence and was against the manifest weight of the evidence; that the damages were excessive, appearing to have been given under the influence of passion and prejudice. The plaintiff below consenting to a remittitur of $1,880 from the verdict, the court overruled the motion for a new trial and rendered judgment in favor of the plaintiff for the sum of $4,000. Thereupon the defendant below filed his petition in error in the court of appeals, alleging therein the same specific reasons for reversal that were relied upon in his motion for a new trial. The court of appeals affirmed the judgment of the court below for the sum of $4,000 and assigned its reasons for affirmance in its journal entry, as follows:
    “This cause came on for hearing upon the petition in error, the transcript and the original papers and pleadings from the Court of Common Pleas of Cuyahoga County, and was argued by counsel, on consideration whereof the court find that the verdict of the jury in the sum of five thousand eight hundred fifty ($5,850) dollars is excessive, and that the judgment of the Court of Common Pleas in the sum of four thousand ($4,000) dollars entered in said action is also excessive; and the court find that no part of the verdict or judgment was the result of passion or prejudice. The court further finds that where a trial court does not find passion or prejudice, hut requires a substantial remittitur, and renders judgment which, except as to amount, is regular and proper, this court cannot reverse said judgment either on the ground that it is excessive or that it is not sufficient evidence unless it finds that the excessive damages appear to have been given under the influence of passion or prejudice, and it is therefore considered that the judgment aforesaid be and the same hereby is affirmed.”
    The court of appeals, finding that its judgment was in conflict with a judgment of another court of appeals upon the same question, certified the case to this court for review,
    
      Messrs. Boyd, Qarmom, Brooks <& Wickham, for plaintiff in error.
    
      Mr. P. J. MulUgan, for defendant in error.
   Jones, J.

The judgment rendered by the court of appeals in this case was found to be in conflict with a judgment pronounced by the court of appeals of the fourth district, sitting by assignment in Cuyahoga county, in the case of Cuyahoga Lumber Co. v. Shibilla, Admr. In the Shibilla case a verdict in the sum of $7,500 was awarded, and the administrator agreeing to accept a remittitur of $3,500, the trial court entered a judgment for the sum of $4,-000. The court of appeals finding that the judgment of $4,000 was still excessive, and against the weight of the evidence, reversed the reduced judgment on the authority of Toledo Rys. & Light Co. v. Paulin, 93 Ohio St., 396, and remanded the case to the trial court for further proceedings. Thereupon the administrator filed his motion to certify the case here. On May 3, 1920, this court overruled the motion to certify.

It will appear that the finding of the appellate court as to excess in the instant case is substantially similar to that taken in the Shibilla case, and, if our action was then correct in denying the motion to certify, a reversal would necessarily follow in this case. However, since a conflict has appeared in two separate courts of appeals it has been deemed advisable to pass, in a reported case, upon the legal questions involved.

Claim is made that since the jury have fixed the amount of damage it is not within the province of either the trial or reviewing court to review the amount of the verdict, since this would be the substitution of the judgment of the court for that of the jury. It is within the common knowledge of the legal profession that heretofore trial and reviewing courts have exercised their prerogative of ascertaining whether the damages allowed by the jury are excessive in amount. The power of evidential review has always been exercised not only in this state but elsewhere. In actions for wrongful death the amount of pecuniary injuries sustained is an issuable fact. The administrator could not have brought this action except by favor of Section 10772, General Code, which authorizes damages to be given for the benefit of beneficiaries in proportion to the pecuniary injury resulting from death.

It has been held that the pecuniary injury must be ascertained by the jury from proofs in the case, and is limited to pecuniary compensation only, Steel, Admr., v. Kurtz, 28 Ohio St., 191; that the reasonable expectation of what the next of kin might receive from the deceased had he lived is a proper subject for consideration by the jury in determining such pecuniary injury, Grotenkemper v. Harris, Admr., 25 Ohio St., 310.

It can readily be seen that various factors may arise in the determination of damages in cases of this character. These are exemplified in the charge given and approved in Grotenkemper v. Harris, supra. The proofs sustaining damage must necessarily require the consideration of both court and jury. If not admitted but denied, the amount of pecuniary injury necessarily must be determined from evidence peculiar to each case. When a court finds that the damages are excessive it can only determine that fact from the weight or sufficiency of the evidence; and if the judges of the court of appeals unanimously agree that such damages are excessive it becomes the duty of that court to reverse and remand for new trial, or it may affirm in case a remittitur is consented to by the party obtaining the verdict. In this respect, the power of the court of appeals to award new trial is as plenary as that of the trial court. We can easily conceive of a case founded upon negligence where the defendant may concede the issues made by the petition except that of pecuniary injury sustained. In such event damages become the only issue in the case, and a judgment rendered thereon by the trial court may not only be reviewed under the procedure provided by statute but also under tbe explicit provisions of Section 6, Article IV, of' our Constitution, which gives to the court of appeals the right “to review, affirm, modify or reverse the judgments” of lower courts. In the instant case the court of appeals judges having found that the reduced judgment of $4,000 was still excessive, they could do so only by an examination of the record before them; and having deduced such finding from the evidence it became the duty of that court, if the finding was unanimous, to remand the case for a new trial, unless a further remittitur was required and consented to.

Section 11576, General Code, provides that a new trial may be granted for various reasons, among others: “4. Excessive damages, appearing to have been given under the influence of passion and prejudice. * * * 6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.”

Counsel for defendant in error argues, since the legislature has covered the field of damages in Section 11576, General Code, and by subdivision 4 thereof has expressly limited the granting of new trials for “excessive damages, appearing to have been given under the influence of passion and prejudice,” that under the maxim, expressio umius est exclusio alterius, the courts are limited to that subdivision and may not grant a new trial unless passion or prejudice appear; that the legislature having dealt with damages in subdivision 4 presumably exhausted the subject. If this argument holds, then a court may not reverse for excessive damages in any case, whether sounding in contract or tort. The same argument was made but failed to convince the court in Toledo Rys. & Light Co. v. Mason, 81 Ohio St., 463. That was a suit fór personal injuries, where it was insisted that damages were inadequate.' This court held that inadequacy .of damages was a cause for new trial in an action for personal injury, notwithstanding subdivision 5 appeared to limit new trials to action upon contract or for injury or detention to property. And it was expressly held in the second syllabus that inadequacy of damages was reversible under subdivision '6, on the ground that the verdict was “not sustained by sufficient evidence,” and in the opening of the opinion (when the new trial statute was the same as now) it was stated: “The doctrine now generally accepted is, that the verdict of a jury is subject to the supervision of the court whether too large or too small.” This principle is sustained by the later case of Toledo Railways & Light Co. v. Paulin, 93 Ohio St., 396, a suit •for personal injuries, where the complaint made was that the damages were excessive. This court held that where the reviewing court found that such a verdict was not supported by the w;eight of the evidence, and therefore excessive, it should not modify but reverse. Since but two judges of the court of appeals found the damages excessive, this court affirmed the judgment of the court of appeals, which held that it had “no power to reverse” or “require a remittitur of any part of said judgment, except by the concurrence of all the judges of said court.” We therefore hold that the right and authority of a reviewing court to weigh evidence in passing upon a trial court’s action on a motion for a new trial grounded on subdivision 6 of Section 11576, General Code, are not limited or restricted by reason of the fact that the motion is also grounded on subdivision 4 of the same section. A reviewing court having the power and authority to reverse on the weight of the evidence, finding the judgment and verdict excessive but not the result of passion or prejudice, may reverse if the judgment and verdict are not sustained by sufficient evidence.

, As will appear from the entry of the court of appeals, it not only found the amount of the verdict excessive, but that the reduced amount of $4,000 was also excessive. However, it considered that it could “not reverse said judgment either on the ground that it is excessive or that it is not sustained by sufficient evidence unless it finds that the excessive damages appear to have been given under the influence of passion or prejudice.”

The authority of an appellate court to affirm a judgment of the trial court for damages in personal injury cases, where a remittitur has been required by the latter, is generally recognized in this country, as may be seen from the large number of cases cited in support of that principle. (4 Corpus Juris, 1139, Section 3139.) The authority of an appellate court to require a further additional remittitur is recognizable elsewhere, as shown by the following text: “Where plaintiff has entered a remittitur in the trial court of part of the recovery, but has failed to remit enough, the appellate court may allow or require a further remittitur as a condition of affirmance.” 4 Corpus Juris., 1143, Section 3146; Freeman v. Ortiz, 136 S. W. Rep., 113, and Hoger v. Hart, 159 Iowa, 234.

If the verdict was given under the influence of passion or prejudice, neither the trial court nor a reviewing court could require a remittitur. In that event no power exists in either but to reverse unconditionally. This principle is announced by Matthias, J., on page 401 of the Paulin case, supra: “If the verdict is found to. be excessive, appearing to have been induced by passion or prejudice, it is the duty of the reviewing court to reverse and remand for a new trial.” This statement is generally recognized in this country as the true rule to be applied, as shown by text-book and authority. But it may not be amiss to note the distinction made between the exercise of power to reverse verdict's showing prejudice. or passion and verdicts that are found to be merely excessive. The following case3 are authority sustaining remission of amount when verdicts are excessive, but requiring a rejection of the verdict where it appears to have been induced by passion or prejudice. Stafford v. Pawtucket Hair-cloth Co., 2 Cliff., 82; Kelly v. Commonwealth Electric Co., 167 Ill. App., 210; Steinbuchel v. Wright, 43 Kans., 307, and Arkansas Valley Land and Cattle Co. v. Mann, 130 U. S., 69, 74.

In the Pawtucket case, supra, the following statement appears: “Where damages awarded by a jury are excessive, the error may in many cases, and under most circumstances, be obviated by remitting the amount of the excess; but where the circumstances clearly indicate that the jury were influenced by prejudice, or by reckless disregard of the instructions of the court, that remedy cannot be allowed.”

In the Mann case, supra, Mr. Justice Harlan of the United States supreme court quoted approvingly the language of Mr. Justice Clifford in the Pmvtucket case, and in the course of his opinion said that in case the jury were governed by passion in finding their verdict or had deliberately disregarded facts that made for the defendant it became the duty of the court to set aside the verdict as one not fit to be the basis of a judgment. Said he, page 75: “Undoubtedly, if such had been the view which the court entertained of the motives or conduct of the jury, it would have been in accordance with safe practice to set aside the verdict and submit the case to another jury.”

The United States supreme court approved this procedure which was also sustained by the same court in Northern Pacific Rd. Co. v. Herbert, 116 U. S., 642. In both federal court eases the point was also made that the requirement of a remittitur for part of the damages was in effect the substitution of the judgment of the court for that of the jury, and in that respect deprived the defendant of his constitutional right to have a jury pass upon the question of damages. However, that tribunal held that-the exercise, of this power was inherent in the court and was not an impairment of the constitutional right of a trial by jury.

While it may be conceded that the power of a court to remit may be exercised where it can determine with reasonable exactness what the verdict should be, or where the excess is susceptible of computation, as in contract or other cases where property values are involved, it. is argued that the power does not exist where the damage may not be measured by a fixed standard or determined with exactness. .....

, The general rule relating to this subject, adopted by the various jurisdictions of this country,-is as follows: “It is the practice to permit a- remittitur where • the verdict is excessive -whether the excess is susceptible of computation or not, and this is the more general rule.” 20 Ruling Case Law, 317, Section 100, citing a large number of authorities.

In Ohio this power to require remittitur, where passion or prejudice does not appear, has always been exercised, as it has been in other states of the Union, and it has never been challenged before this court in any reported case. Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S., 94, was a personal injury case, where a judgment of $5,000 was entered after a verdict for $10,000 was reduced by consent of the plaintiff; and the same argument was there made as is urged here, as shown by the opinion of Mr. Justice Pitney, at page 103, where he said that the argument was made “that an excessive verdict may not be cured by a remitter where the amount of the damages cannot be measured by any fixed standard or determined with certainty; that a verdict so excessive is conclusive evidence that it was the product of prejudice. on the part of the jury, and that this vice goes to the entire verdict, and not merely to the excess.” While the justice alluded to the fact that the Arizona civil code empowered such a remittitur, he said that the United States supreme court had theretofore held that the power existed “without the sa/nction of a statute.”

No doubt a court, trial or appellate, may dislike placing upon its journals an entry stamping the verdict of a jury as one given under the influence of passion or prejudice; it is infrequently done, and occasionally not done where the amount of the verdict and the "evidence offered justify such' an entry.

I have not discussed the claim announced in one of the dissenting opinions in this case, denying exercise of the judicial prerogative to remit or reverse because of the alleged limitation found in Section 19a, Article I, of the Ohio Constitution. That question was neither urged nor presented by any of the counsel in this case. It was presented in Kennedy, Admr., v. Byers, to be announced as of. the next term (107 Ohio St., —), but in that case no member of this court concurred in the views expressed, upon that feature, in the dissenting opinion.

In the instant case the court of appeals found affirmatively that no part of the verdict or judgment was the result of passion or prejudice, but affirmatively found that both the verdict and reduced judgment were excessive. Having so found it became the duty of the court of appeals to remand the case for a new trial. The judgments of the lower courts are reversed, and the cause remanded to the trial court for further proceedings according to law.

Judgment reversed.

Marshall, C. J., Robinson and Clark, JJ., concur.

Matthias, J., concurs in propositions 1, 2, 3 and 5 of the syllabus and in the judgment.

Hough, J., concurs in propositions 2 and 3 of the syllabus, but dissents from the judgment.

Wanamaker, J., dissents.

Hough, J.,

dissenting. I fully agree with the propositions set out in paragraphs 2 and 3 of the syllabus, but am not able to agree with the judgment.

In this case the jury were called upon, after actionable negligence had been found to exist, to assess damages in a case where the value of the life of a boy six years of age was involved. So far as the amount of damages was concerned there was no dispute in the evidence, no conflict of any kind or character, but the trial of the case developed that this normal, healthy boy’s death was the result of the accident which furnished the cause of action. To arrive then at the damages the jury were not called upon to draw inferences, or to weigh one fact or one set of facts against another, or others, but their function,, so far as the amount of damages was concerned, was purely and solely to fix and assess an amount which, in their opinion, would compensate in a sum equal to the value of the life. And this was entirely a jury function. For a reviewing court, having undoubted authority under subdivision 4 of Section 11576, Gen - eral Code, to reverse on account of excessive damages, appearing to have been given under the influence of passion or prejudice, to affirmatively say that passion and prejudice did not exist and then find that the damages were excessive, in a case like the one before us, is no more or no less than the substitution of the court’s judgment for that of the jury, and my conviction and conclusion are that a reviewing court may not thus reverse under the guise and subterfuge of weighing the evidence. And this conclusion of course leads to a judgment of affirmance rather than one of reversal.

Wanamaker, J.,

dissenting. What is the value of “a boy six years of age,” of average health and intelligence? Or, fitting the question to this case: Is $4,000 excessive damages for the wrongful taking of the life of such a boy, and do such damages warrant this court in reversing the courts below and granting a new trial?

The majority of this court answer this question with a yes. I answer it with a no. This is the only question in the case.

Raymond Bradford, the boy, was struck by an automobile on the 11th day of June, 1917, driven at a high and dangerous rate of speed, and on the wrong side of the street, in violation of numerous ordinances of the city of Cleveland and statutes of the state of Ohio. He died as a result of the injuries on the 15th day of June, 1917, four days later.

No question is made as to the negligence of the automobile driver. No claim is made as to the contributory negligence of the boy. What is his life worth in damages as measured by the law as it is, or as it should be?

The twelve men in the jury box returned a verdict of $5,880. Upon motion for a new trial the trial judge reduced it to $4,000. Error was prosecuted ■to the court of appeals, which examined the record and found as to the $4,000 that it was “excessive”; and also found that “no part of the verdict or judgment was the result of passion or prejudice.” The court of appeals affirmed the judgment below, $4,000, and finding its judgment in conflict with that of another court of appeals certified the case here for review.

The matter of new trials in such cases is concededly regulated by the statutes, especially Section 1157'6, General Code, which so far as pertinent x-eads:

“A former verdict, report, or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights: * * *
“4. Excessive damages, appearing to have been given under the influence of passion or prejudice. # # #
“6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.”

I hold that the “excessive damages” claimed in this case are comprehended wholly and only under subsection 4, and before excessive damages warrant the granting of a new trial they must be so excessive, must so grossly exceed the demands of justice under the evidence of the case, as to appear to have been given “under the influence of passion or prejudice.”

But the courts below find that the jury’s verdict, and no part thereof, was rendered under the influence of passion or prejudice. Therefore it must follow that this new trial cannot be ordered or justified under above subsection 4 of Section 11576, General Code.

It is sought, however, to justify this reversal and new trial under subsection 6, of Section 11576, heretofore quoted, that the verdict “is not sustained by sufficient evidence.” If subsection 4 were not expressly enumerated in the statutes, the majority’s opinion would be sound. But the express enumeration of subsection 4 specifically excludes it from subsection 6 by all the rules of judicial construction heretofore known and declared.

The old doctrine of expressio unkis est exclusio alterius has been applied too long and too often as a wholesome rule of construction to be so flagrantly disregarded in this case. The expression of this explicit provision concerning excessive damages was for no other purpose than to remove or withdraw that question from subsection 6, for necessarily it involves the weighing of the evidence, determining whether or not there is sufficient evidence to support the verdict.

What are the various elements that a court must consider in determining whether or not the verdict is “sustained by sufficient evidence?” There are four factors which the court may consider in such cases:

1. Where the verdict is for the plaintiff, should it have been, under the evidence, for the defendant?

2. Where the verdict is for the defendant, should it have been, under the evidence, for the plaintiff?

3. Where an amount in damages is allowed, is it under the evidence too much; that is, excessive?

4. Where an amount is allowed, is it too little under the evidence, or inadequate?

Now the effect of this subsection 4, pertaining to excessive damages, was to remove this third factor from the general doctrine announced in subsection 6, “not sustained by sufficient evidence.”

If that be not sound sense, then subsection 4 relating to excessive damages is wholly superfluous,

What the legislature evidently meant was that before excessive damages can justify a reversal or granting of a new trial the verdict must appear “to have been given under the influence of passion or prejudice,” and in this case neither of the lower courts made that finding; and we do not weigh evidence.

It is invariably the rule in such cases that courts charge juries that the amount of damages recoverable has been soundly and wisely left to their judgment and determination; the only exception legally allowable is where a verdict of the jury is so grossly excessive as to be shocking to one’s sense of justice.

This doctrine is clearly, and concisely announced in 13 Cyc., 121:

“The general rule on this point as expressed by Judge Story is ‘that a verdict will not be set aside in a case of. tort for excessive damages, unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law, by which the damages are,to be regulated.’ In such cases the court should merely consider whether the verdict is fair and reasonable, and in the exercise of sound discretion, under all the circumstances of the case; and it will be so presumed, unless the verdict is so excessive or outrageous with reference to those circumstances as to demonstrate that the jury have acted against the rules of law or have suffered their passions, their prejudices, or their perverse disregard of justice to mislead them.”

This is the general doctrine prevailing, throughout a great majority of the states. In the United States courts it has been held that the appellate court possessed no revisory powers as to excessive verdicts, but was limited to the inquiry whether the jury were properly directed as to the mode of assessing'damages. (Homestake Mining Co. v. Fullerton, 69 Fed. Rep., 923; 16 C. C. A., 545.)

The doctrine of pecuniary damages, financial loss to the estate of the child, is a judge-made doctrine. It is so cold and calculating as to be really bloodless. Awarding pecuniary damages to the next of kin of a child six years of age is merely making a business commodity out of the child, and subjecting the loss of that child’s life to the dollars and cents argument, limited to how much that (child would probably contribute in later years, had he lived, to the father and mother, or brothers and sisters.

A husband may recover for the loss of his wife’s affections and companionship in a suit properly filed for alienation of affection. In an action for breach of promise a party may recover for loss of companionship, affection, and loss of marital prospects, largely speculative; but in a case of the loss of a child many courts have by repeated decisions and dictums held that no matter how great the loss to the parents in affection, companionship, pain and suffering such elements cannot enter into the amount of the verdict.

But, what does it cost as a mere financial investment to grow, develop, nurse and train a boy to the age of six years ? Is $500 a year too much, or, likely, too little, if care, nursing, doctor’s bills, clothing, food and other necessary and incidental expenses be included?

But I protest against this cold-blooded, calculating measure of human life — the wiping out of elements and considerations in valuing the life of children that are admittedly included in the loss of companionship in adults.

Excessive damages have been considered in other courts. In Rice v. Crescent City Rd. Co., 51 La. Ann., 108, $4,000 for a.child 3% years old was .not excessive. In Swan v. Boston Store of Chicago, 177 Ill. App., 349, it was held that $6,000 for a boy five years of age was not excessive. In Chicago City v. Strong, Admr., 129 Ill. App., 511, it was held that a verdict of $5,000 for a boy 6y2 years of age was not excessive. In Houghkirk v. Delaware & H. Canal Co., 28 Hun, 407, a verdict of $5,000 for a girl six years of age was held not excessive. Taylor, B. & H. Ry. Co. v. Warner, 31 S. W. Rep. (Texas), 66, held that a verdict of $5,000 for a boy seven years of age was not excessive. De Amado v. Friedman. 11 Ariz., 56, held that a verdict of $4,800 for a boy 4y2 years old was not excessive. Ahern v. Steele, 48 Hun, 517, held a verdict of $4,800 for a boy six years of age not excessive. Golden v. Spokane & I. E. Rd. Co., 20 Ida., 526, held a verdict of $4,000 for. a boy seven years of age not excessive. And Ortolano v. Morgan’s L. & T. Rd. & S. S. Co., 109 La., 902, held that a verdict of $4,000 for a boy five years old was-not excessive.

I dissent from the judgment in this case for another and stronger reason, and that is that this court by its judgment in this case acts in plain and palpable violation of Section 19a, Article I, Bill of Rights, which reads:

“The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law.”

This section was adopted as a part of the Ohio Constitution in 1912. The language, “ shall not he limited by law,” is in itself unlimited; that is, it is broad and comprehensive enough to include all kinds of law, whether made by assumed legislative, executive, or judicial authority.

Suppose the legislature provided in express terms a schedule of limits beyond which juries and courts might not go in the rendering of verdicts or judgments, say $1,000 for infants under four years of age, $4,000 for infants under six years of age, $6,000 for infants under ten years of age, would any lawyer or judge contend that such was not a bold violation of this constitutional provision?

Is it any less a violation of the constitutional provision when such law is put into the judgment of a court? It may be urged that the supervising judgment of a court is necessary to do justice to all parties, but courts now have that power as to excessive damages, where they find that such excessive damages appear “to have been rendered by passion and prejudice.” But if any rational view, of the facts of the case touching the death, the health, intelligence, and reasonable prospects of the child killed, sustain the amount of the verdict, upon what prin- - ciple of law may a court set it aside and order a new trial?

■ This comprehensive language in the Ohio Constitution is further emphasized by the fact that the debates in the constitutional convention develop similar constitutional provisions in a large number of the states of the Union, and it is significant that in those various constitutional provisions appearing in other states the language as a rule is, “no law shall be passed, no statute shall be passed,” in a strict sense indicating that the constitutional provision related to a limitation upon the legislative branch of the government. Here in Ohio it is otherwise. It is a mandate to be observed not only by the legislative branch of the government, but by the judicial branch as well.

Again, I hold that this language wipes out the former limitation of damages to “pecuniary injury,” established by statute and by courts.

When you limit the nature of the damage, you necessarily limit the amount of the damages. You might as well talk about excluding a factor in a mathematical problem without affecting or reducing the sum or product as to talk about reducing the factors and limits that enter into “the amount of damages.”

It is an old truism that what the law may not do directly, it may not accomplish by indirection, however masked, through whatever name, function, or agency.

This boy’s life was negligently and wantonly taken in 1917. The case was begun in the court of common pleas of Cuyahoga county in 1918. We are now near 1923, and this case must be tried all over again. When ultimate justice may be finally done, none may foretell.

I protest against this reversal as contrary to the demands of the law, the constitution, and the dictates of humanity.  