(dissenting)—The majority opinion holds that the court below erred in excluding testimony tending to show the effect that the worry and excitement incident to the pend-ency of a lawsuit would have on the disease from which the respondent was suffering, and in that conclusion I concur; but I cannot concur in the final disposition made of the case. Doubtless, where the injury resulting from an error committed in the trial of a cause can be segregated from the amount of the verdict, which is otherwise supported by the testimony, the judgment may be afiirmed for the residue, on the remission of the excess by the prevailing party; but where it is impossible or impracticable for the appellate court to ascertain or determine the extent to which the verdict has been affected by the erroneous ruling a new trial must be awarded. In St. Louis etc. R. Co. v. Hall, 53 Ark. 7, 13 S. W. 138, the court said:
“The difficulties which would beset a court in determining the justness or excessiveness of a verdict based upon these premises alone would not be inconsiderable. But superadd the element of punitive damages, erroneously allowed, and the process by which the court is to dissect the verdict, eliminate the error, eliminate the excess of compensation, and settle upon the exact sum which plaintiff’s case entitles him to have, ‘passeth all understanding.’ To attempt it, we think, would be in violation of the spirit of the consitution, which intends that every litigant shall have a trial of his cause before an impartial jury upon proper declarations of the law.”
In Houston etc. R. Co. v. Bird (Tex. Civ. App.), 48 S. W. 756, the court said:
“In the absence of evidence from which the jury could properly ascertain the amount of loss sustained in impairment of ability to earn money, it was error for the court to submit this element to the jury, and because of the absence of such evidence we think also that the verdict is excessive. What would be a proper amount, with appropriate evidence on the points indicated, this court cannot, of course, determine, and, *310since there was error in the charge, -it cannot be cured by a remitter.”
To the same effect see: Chicago etc. R. Co. v. Hall, 90 Ill. 42; Seeman v. Feeney, 19 Minn. 79; Slattery v. St. Louis, 120 Mo. 183, 25 S. W. 521; Thompson v. Lumley, 7 Daly 74; 3 Cyc. 439.
If competent material testimony was excluded from the consideration of the jury, and is not now before this court, how the majority can say what the judgment should be, likewise “passeth all understanding.” To' have reached the conclusion announced, the members of the court must have turned jurors .and expert witnesses as well. In effect the majority has said to the appellant: you were denied a fair trial in the court below, but you must nevertheless submit to the payment of the largest judgment that any reasonable view of an incomplete record will warrant. From such an anomaly I dissent.