ON MOTION FOR HEARING.
A motion for a rehearing was made in this case. After careful •consideration, it is overruled. It was urged that the assignments •of error in cases cited in the original opinion more clearly raised the points considered than those in the case at bar. In some of the cases cited the specifications of error were more elaborate and perhaps more definite. But in other cases we do not think that the assignments of error which were passed on by this court made the point under consideration any more clearly than it was made in this case; and this was the meaning of the statement in the opinion that “it was quite as clearly made as in other cases cited above.” Thus, in the case of Savannah, Florida and Western Railway v. Harper, 70 Ga. 120, the presiding judge ordered that the motion for a new trial should be granted unless within five days the plaintiffs should write off from the verdict a certain amount; and in the event they should do so, a new trial should be refused. The amount was written off. The assignments of error were that the judge erred in denying the motion for a new trial, and “that the said judge erred in not granting a new trial without terms or conditions. That the said judge erred in not granting, unconditionally, the new trial prayed for upon each and all of the grounds *800of said motion for new trial and amendments thereto.” This does not appear to make the point that the judge ought to have granted a new trial, and ought not to have refused it upon compliance with a condition that the plaintiff write off a part of his recovery, any more clearly, in our opinion, than in the present case the plaintiff in error complains that the judge orally disapproved the verdict as it stood, stated that he would not approve a verdict except for a certain amount, allowed the plaintiff’s counsel to reduce it to that amount, and then refused a' new trial. At any rate, we think that the bill of exceptions and the assignments of error therein are sufficient to raise the question for adjudication by this court.
It was suggested that no.objection-was shpwn to have been made,, nor was any exception taken, to the court’s allowing plaintiff’s counsel to reduce the verdict by writing off a part of it, but only to the overruling of the motion for a new trial. Had the plaintiff in error assigned error because the presiding judge allowed the plaintiff to abandon a part of her recovery, she would no doubt have promptly replied that she had a right to cancel her recovery in whole or in part, and not to insist on collecting it all, or indeed any of it, if she saw fit not to do so. The trouble was, not merely that she wrote off a part of her recovery, but that the court announced his dissatisfaction with the verdict which the jury had found, as being excessive, and then, when the plaintiff had reduced it to an amount stipulated by him, refused the new trial. It was not-simply the reduction of the amount which was the substantive cause of the complaint, but the refusal of a new trial upon the reduction of the verdict to an amount fixed by the presiding judge as satisfactory to him, instead of by a jury. The overruling of the motion, under the circumstances and on the basis set out in the bill of exceptions, was the real error assigned.
We think the point is controlled in principle by the decisions cited in the opinion heretofore filed; and that it is not open for discussion as an original proposition. In eases where, from the application of the law to the evidence, an excess in the verdict can be accurately ascertained and the verdict corrected by plaintiff’s writing it off, a different rule might apply. But in cases like that under consideration, where the jury found a verdict for a specified amount, on account of the homicide of the plaintiff’s husband, and there was no exact method by which, from an application of the *801law to the evidence, if the amount was excessive, the excess could be accurately ascertained, under the former decisions of this court, which are binding, the presiding judge could not lawfully fix an amount which in his discretion would be a proper verdict, and, upon the plaintiff’s reducing the recovery to that amount, refuse a new trial.
Counsel for the defendant in error included in his motion a request, that, if a new hearing should not be allowed, the new trial should be limited to assessing the amount of damages. Under the facts of the case, we do not think it would be proper to give such a direction to the court below; and the request is denied.