
    No. 17164.
    L. C. Schendel v. Joseph Bradford, Admr., etc.
    Error to the Court of Appeals of Cuyahoga county.
    NEGLIGENCE — (1) Action for wongtful death — Amount of pecuniary injury issuable — -Proof of, if denied— (2) Reviewing* court may weigh evidence, when — -(3) Excessive judgment, not result of passion or prejudice — (4) Duty to remand cause if remittur no consented to — (.5) New trial should be awarded, when.
   JONES, J.

1. In actions for wrongful death the amount of pecuniary injuries 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 of reviewing court finds the verdict or judgment to be excessive, appearing to be induced by passion and prejudice, a new trial should be awarded. 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 2 and 3, but dissents from the judgment. Wanamaker, J., dissents.  