This was an action for personal injuries based in part upon the federal safety appliance act and therefore controlled to that extent by federal decisions. It resulted in a verdict for $18,500. The defendant moved for judgment or, if that were denied, for a new trial on five grounds, namely: (1) The verdict was not justified by the evidence; (2) it was contrary to law; (3) errors of law; (4) misconduct of counsel; (5) excessive damages appearing to have been given under the influence of passion or prejudice. The trial court granted a new trial unless the plaintiff would accept a reduction of the verdict to $15,000, but stated in a memorandum, not made a part of the order, that there was no indication of passion, prejudice, or sympathy. The plaintiff made no motion to correct the court's action but accepted the reduction. Defendant has appealed and has assigned the same grounds here. Under the first two grounds it urges that no verdict in favor of plaintiff should stand. We think that this is the only result that could properly be urged under those grounds and that it could not properly be urged that the verdict was too large or should be reduced. Mohr v. Williams. 95 Minn. 261, 266, 267,104 N.W. 12, 13, 1 L.R.A.(N.S.) 439, 111 A.S.R. 462,5 Ann. Cas. 303. In that case the court, speaking through Mr. Justice Brown, said: *Page 170
"Considerable confusion has existed with reference to the proper rule guiding this court in reviewing orders of this kind ever since the decision in Nelson v. Village of West Duluth,55 Minn. 497, 57 N.W. 149, wherein it was said that the rule of Hicks v. Stone, 13 Minn. 398 (434) did not apply. Several decisions involving the same question have since been filed, and the bar is apparently in some doubt as to the true rule upon the subject.
"We are not disposed to review the former decisions of the court, but, for future guidance, take this occasion to say (that there may be no further controversy in the matter) that in actions to recover unliquidated damages, such as actions forpersonal injuries, libel, and slander, and similar actions, where the plaintiff's damages cannot be computed by mathematical calculation, and are not susceptible to proof byopinion evidence, and are within the discretion of the jury,the motion for new trial on the ground of excessive orinadequate damages should be made under the fourthsubdivision of section 5398, G. S. 1894; and in such cases the court will not interfere with the verdict unless the damages awarded appear clearly to be excessive or inadequate, as the case may be, and to have been given under the influence of passion or prejudice. On the other hand, in all actions, whether sounding in tort or contract, where the amount of damages depends upon opinion evidence, as the value of property converted or destroyed, the nature and extent of injuries to person or property, the motion for new trial should be made under the fifth subdivision of the statute referred to; and in cases of doubt, or where both elements of damages are involved, under both subdivisions. State v. Shevlin-Carpenter Co. 66 Minn. 217,68 N.W. 973.
"But in any case, whether a new trial upon the ground of excessive or inadequate damages should be granted or refused, or whether the verdict should be reduced, rests in the sound judicial discretion of the trial court (Craig v. Cook, 28 Minn. 232,9 N.W. 712; Pratt v. Pioneer Press Co. 32 Minn. 217,18 N.W. 836, 20 N.W. 87), in reviewing which this court will be guided by the *Page 171 general rule applicable to other discretionary orders." (Italics supplied.)
This court in Nelson v. Village of West Duluth, 55 Minn. 497,500, 57 N.W. 149, speaking through Chief Justice Gilfillan, said:
"In an action in tort, the objection that the damages are excessive or inadequate, as a ground of motion for a new trial, comes under subdivision 4, and not subdivision 5, of 1878 G. S. ch. 66, § 253, as amended, Laws 1891, ch. 80, which was not called to our attention in Henderson v. St. Paul Duluth R. Co. 52 Minn. 479, (55 N.W. 53). That subdivision reads: 'Excessive or inadequate or insufficient damages, appearing to have been given under the influence of passion or prejudice.' Under that subdivision, it is not enough that the damages may, in the opinion of the court, be too large or too small; it must appear that they were given under the influence of passion or prejudice. Ordinarily, this would appear from the verdict beingso large or so small, when compared with what the evidenceindicates it ought to be, that the court must conclude that thejury did not arrive at the amount upon a fair and impartialconsideration of the evidence." (Italics supplied.)
By including all tort cases the court probably went beyond the rule later laid down, but it recognized the principle we here deem controlling.
Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, was decided and this rule laid down after much confusion had arisen in the minds of the profession as to the proper rule guiding this court in reviewing orders made upon motions for new trial where the question of excessive damages was involved. The case was shortly followed by the case of English v. M. St. P. Suburban Ry. Co. 96 Minn. 213, 104 N.W. 886, where this court refused to review the question of excessive damages where the error assigned was that the verdict was not justified by the evidence. In the recent case of Wright v. Engelbert, 193 Minn. 509,259 N.W. 75, recovery was sought for death by wrongful act. The plaintiff sought a new trial on the ground of inadequate damages appearing to have *Page 172 been given under the influence of passion or prejudice and that the verdict was not justified by the evidence and was contrary to law. This court followed the rule in Mohr v. Williams,95 Minn. 261, 104 N.W. 12, and in discussing the amount of the verdict refused to consider the question as raised by the assignment that the verdict was not justified by the evidence and was contrary to law. The principle appears inherent in the character of the damages recoverable in this class of cases. Such damages must rest in the discretion of the jury and are not susceptible of calculation. It is true that in a subsequent case, Kemerer v. Mock, 198 Minn. 316, 269 N.W. 832, this court, without any discussion of the rule, reduced a personal injury verdict from $5,000 to $3,500 although it saw nothing in the record indicating passion or prejudice. The writers of this dissent joined in that opinion, and we take our share of responsibility for it, but we do not think that the rule there tacitly assumed should be followed, for it leads to the same confusion in the minds of the profession that existed prior to the decision in the Mohr case.
The case of Goss v. Goss, 102 Minn. 346, 348, 113 N.W. 690,691, cited in the majority opinion, was one where the question involved was whether or not under the state practice a new trial might be ordered conditionally in order to effect a reduction of the verdict. What is quoted from that opinion in Birdsall v. Duluth-Superior Transit Co. 197 Minn. 411,267 N.W. 363, is separated from its context and if read together with the rest of the opinion shows clearly that it means no more than that an excessive verdict in this kind of a case is not ground for a new trial unless so excessive as to indicate passion or prejudice. The Birdsall case itself does not lay down a different rule. We think we should adhere to the rule announced in the Mohr case, 95 Minn. 261, 104 N.W. 12.
In the case at bar the trial court attached to the order granting a new trial conditionally a memorandum not made a part of its order in which it was stated: *Page 173
"However there isn't any indication that the jury was actuated by a feeling of passion or prejudice or sympathy in the rendition of their verdict."
Where, as here, the size of the verdict could only be properly considered under the fifth ground of the motion, the question now under consideration stands as if the fifth ground were the only ground stated in the motion. At any rate, the memorandum, not being made a part of the order, cannot be resorted to for the purpose of impeaching the order nor can it be used for the purpose of interpreting a perfectly plain order which needs no interpretation. It cannot be resorted to for the purpose of creating an ambiguity in the order which requires explanation or interpretation. Alton v. C. M. St. P. Ry. Co.107 Minn. 457, 120 N.W. 749; Pinkerton v. Wisconsin Steel Co.109 Minn. 117, 123 N.W. 60. It therefore stands judicially determined by the trial court that passion and prejudice influenced the verdict, and that question is not properly here for review.
We come then to the effect of the federal rule announced in M. St. P. S. S. M. Ry. Co. v. Moquin, 283 U.S. 520, 521,51 S.Ct. 501, 502, 75 L. ed. 1243, which held that if passion or prejudice enter into the result in any degree the verdict cannot be permitted to stand. The court said, speaking through Mr. Justice Roberts:
"Obviously such means may be quite as effective to beget a wholly wrong verdict as to produce an excessive one. A litigant gaining a verdict thereby will not be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent."
The rule is peculiarly applicable in a case like this where the question of defendant's liability is a close one due to the fact that connection as cause between the plaintiff's fall and his present condition is so much in doubt and where the defendant's evidence was so persuasive as to convince the trial court that the plaintiff's condition was due to arteriosclerosis. *Page 174
It cannot be said that under the federal rule, which is much more logical and more just than our own, that the trial court's error was without prejudice to defendant. If passion or prejudice influenced the verdict, then defendant was entitled to a new trial on all issues. It might as well be said that there would be no prejudice where the court specifically stated in the order that he found passion or prejudice.
We are not in accord with the statement in the principal opinion that there is nothing in the record which indicates passion or prejudice. As in the first trial, counsel was careful to bring out the fact that plaintiff's wife was in poor health. He also endeavored in his closing argument to invoke action by the employes' grievance committee against one of defendant's material witnesses, obviously for the purpose of arousing prejudice in the minds of the jury. We do not think a court's finding that there was prejudice could be upset on this record and verdict. The situation was such that the sympathies of the jury were likely to be aroused and the effect upon the jury's verdict was commented upon in the previous opinion in this case by a unanimous court. Passion or the sympathy which results in prejudice is not apt to be disclosed by the cold record, and usually, as this court said in Nelson v. Village of West Duluth, 55 Minn. 497, 57 N.W. 149, the size of the verdict is the best indication of whether or not it was the result of a fair and impartial trial.
We are not here dealing with technicalities. This is no mere question of whether a memorandum may be resorted to for impeachment of an order. The principles announced in the Mohr case, 95 Minn. 261, 104 N.W. 12, are fundamental in the nature of causes of action for personal injuries and of the power and duty of trial courts. It is fundamental that a verdict in such a case where the damages lie in the judicially controlled discretion of the jury may not be disturbed for excessiveness unless the verdict is the result of passion or prejudice. The amount of the verdict under the rule in the Mohr case may not be questioned on any other ground. Trial courts should understand that they *Page 175 may not, even under the state practice, grant a new trial conditionally for the purpose of reducing an excessive verdict and then in a memorandum commend the jury for its fairness and impartiality. They cannot substitute their judgment for that of the jury merely because they would have arrived at a different amount of damages. It is important that there should be clear thinking by trial courts and counsel upon these fundamental principles and their effect on the powers and duties of courts, but this cannot be expected if this court does not recognize and adhere to those principles.
We think a new trial should be granted.