(dissenting) — I dissent. I should not feel it incumbent upon me to further discuss this case did I not feel that the court has misconstrued the position of counsel for respondent in the foregoing opinion. I have believed, and am constrained to believe yet, that this court has not heretofore, and does not now, understand the position taken by counsel for the respondent. It is true, the counsel asserted that this court, in common with the majority of courts, had conceded to courts the power to reduce verdicts when they were deemed excessive, even though it was not claimed that the verdict had been induced by passion or prejudice; and cited many cases to sustain that position. But, of course, in all such cases it was assumed that an assignment of error had been made that the judgment was excessive; and respondent’s argument was made to show that such an assignment could be made in answer to the claim of the appellant that he could not assign “excessive verdict” because he did not claim that it was induced by passion or prejudice on the part of the jury, but was by reason of alleged errors made by the court.
The majority, in order to sustain the conclusion announced, cite copiously from appellant’s brief, pages 18, 22 and 26, where it is insisted that the court erred in relation to the admission of testimony, which errors were properly assigned and discussed; and then says:
“It is plain that, if appellant’s contention was sound, the error complained of must have tended to arouse passion and prejudice on the part of the jury and to have placed before them improper evidence bearing very materially upon the amount of the verdict.”
It is difficult to see what relevancy this statement has, in the face of the opinion rendered by the majority on appellant’s petition for rehearing, where it was held that the court did not err in the particulars complained of. So that it must logically follow that, if there was no passion or prejudice on the part of the jury — which is admitted — and no *380error committed by the court which prevented a fair trial or tended in any way to arouse passion or prejudice — which is decided — the judgment should have been affirmed. The court, to sustain its conclusion in denying respondent’s petition, says:
“If passion or prejudice on the part of the jury is shown, the court may reverse the j udgment or reduce it even if there is no other error in the case. On the other hand, if no passion or prejudice is shown, but errors as to admission or exclusion of evidence or as to instructions or as to any other matter, are shown which this court believes had the effect of augmenting the amount of the verdict, this court may give relief to the party injured by said errors, and that relief may be by an absolute reversal, a modification of the judgment or an order for a new trial conditioned upon the successful party declining to remit such a portion as may be indicated.”
But no passion or prejudice on the part of the jury was shown, which fact has all along been conceded by the appellant, and which admission he pleads as an excuse for not making the assignment of excessive verdict. On the other hand, it has been decided by this court that there were no errors as to the admission or exclusion of evidence, or as to instructions, or as to any other matter which this court believed had the effect of augmenting the amount of the verdict. Then, what is the basis of the relief which the court has given? The palpable fact to my mind is, and that fact cannot be talked out of existence, that the present judgment of the court, as indicated by the maj ority opinion, is absolutely inconsistent with the judgment rendered and opinion expressed on the appellant’s petition for rehearing; and every argument which is made in support of the present opinion is an argument against the former opinion.
There is an attempted distinction made between assignments of error in regard to excessive verdicts and other assignments, but I will pass that by simply saying that I had always supposed that any and all contentions which might *381result in the reversal or modification of a judgment, in whole or in part, Avould fall within the same rule, and that a respondent would be equally entitled to defend his judgment, or any part of it, by argument made to this court, no matter what the assigned cause for its reversal was.
In defense of the position noAV announced by the court, that this court will determine questions which are not assigned, the majority say that no cases have been decided Avhere this or other courts have refused to take such cognizance which are exactly like the case at bar; and all the cases cited by the respondent and in the dissenting opinion on the appellant’s petition for rehearing in this case are thus brushed aside. No tAvo cases present exactly the same state of facts, but multitudes of cases do embody the same principles ; and this principle has been so often announced by tins court that it would be idle to reproduce the citations here.
But if any argument were necessary to sIioav the fallacy of the position contended for by the majority and the absurd results Avhich will follow, it is furnished by the majority opinion where it sets forth the conflicting contentions of respective counsel as to what was admitted in oral argument concerning the justice of the amount of the verdict. If there had been an argument made in the brief, as the laAV and the rules of this court plainly provide, the issues would have been presented and understood Avithout resorting to a discussion and analysis of conflicting oral statements by respective counsel and of affidavits offered to show what the issues really were.
In conclusion, if the doctrine announced by the majority opinion prevails, viz., that no further assignment of error need be made in the brief than that the court erred in refusing to grant a motion for a neAV trial, and that no argument is required, then all that it is necessary for an appellant to do is to make the one assignment, that the court erred in refusing to grant a new trial; and that brings before this court *382all the questions assigned upon the motion for a new trial, even though there be a hundred or more, without any notice whatever to opposite counsel as to what particular errors are relied upon, or what particular ones have been abandoned, since the motion for a new trial was made. For it must be true that, if one of the grounds of motion for a new trial can be reviewed upon appeal without an assignment or argument, they can all be reviewed — a practice which, if it prevails, will lead to confusion and injustice.