ON REHEARING.
4. The verdict was excessive. 57 Ark. 384; lb. 306. Festus O. Butt and Chas. D. James, for appellee. McCuruoch, J.Counsel for appellant ask a reconsideration by the court of the question of excessiveness of the verdict, and in doing so they necessarily attack the validity of the act of April 25, 1901 (Kirby’s Digest, § 6217), which is as follows:
“An act to regulate the practice in the circuit courts in certain cases.”
“Be it enacted by the General Assembly of the State of Arkansas :
“Section I. The verdict of any jury rendered in any action for the recovery of damages, where the measure thereof is indeterminate or uncertain, shall not be held to be excessive, or be set aside as excessive, except for some erroneous instruction, or upon evidence, aside from the amount of the damages- assessed, that it was rendered under the influence of passion or prejudice; provided, that the circuit judge presiding- at the trial may, on motion for a new trial filed by the losing party, if he deems the verdict excessive, indicate the amount of such excess, and thereupon, if the losing party shall offer to file and enter of record a release of all errors that may have accrued at the trial if the prevailing party will remit the amount so deemed excessive, and the prevailing party shall refuse to remit the same, the verdict shall be set aside.”
It is contended by learned counsel, first, that the statute applies only to practice in the circuit court, and not to this court on appeal; and, next, that, if it does apply to this court, it is void because it is an unauthorized curtailment by the legislative branch of government of the appellate jurisdiction vested by the Constitution in the court.
It seems plain to us that, if the statute is binding upon the circuit court, unless it be held to be unwarranted restriction upon the appellate jurisdiction of this court, it is also binding here on appeal, for the reason that this court only searches for errors in the proceeding below, and will reverse cases only on account of errors, either of omission or commission, of the trial court.
Our inquiry, then, is whether the statute in question is valid so far as it attempts to control this court in the determination of cases on appeal. If it is, the effect of it is to prevent a review by this court of an erroneous assessment of damages made by a jury, and the failure of the trial court to correct the error. The right of appeal is, to that extent, cut off by the statute, if it be given full force. The statute also imposes upon an unsuccessful litigant, before he can accept a reduction of an excessive verdict, the penalty of surrendering his right of appeal.
The Constitution of the State confers upon this court, in the broadest terms, appellate jurisdiction co-extensive with the State. It provides that the Supreme Court shall have á general superintending control over all inferior courts of law and equity.
The section fixing jurisdiction of the court is as follows:
“The Supreme Court, except in case otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, It shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and other remedial writs, and to hear and determine the same, Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.” Const. 1874, art. 7, § 4.
It has been often held by this court that the appellate jurisdiction conferred by the Constitution upon the court cannot be enlarged or divested by the Legislature. State v. Ashley, 1 Ark. 279; Ex parte Woods, 3 Ark. 532; Ex parte Anthony, 5 Ark. 358; State v. Jones, 22 Ark. 331; Ex parte Batesville & Brinkley R. Co., 39 Ark. 82; Simpson v. Simpson, 25 Ark. 487; O’Bannon v. Ragan, 30 Ark. 181.
It follows, then, that, unless the Constitution empowers the Legislature to limit the appellate jurisdiction of the court, it cannot be done. It is contended on behalf of appellee that it was meant, by the use in the Constitution of the words “under such restrictions as may from time to time be prescribed by law,” to confer upon the law-making body the power to limit the right of appeal. Placing this construction upon the language used, the effect of the constitutional provision would be to give to the court only such appellate jurisdiction as the law-making body should see fit to leave to it. Bearing in mind our scheme of constitutional government, both State and National, and the policy of dividing it into three co-ordinate branches of equal dignity and power within defined limits, we cannot believe that the framers of the present Constitution meant to thus subordinate the jurisdiction of the highest court of the State to the will of the Legislature. For, if it be held that the Legislature may limit the power of the court to review the decision of an inferior court in one 'respect, it may do so in another; and if it may prohibit the court from reviewing one question in a case, it may prohibit the review of all questions, and may cut off the right of appeal altogether. Thus by-the process of elimination the Legislature could strip the court of all appellate jurisdiction, and deny to litigants the right of appeal, which is guarantied by the Constitution. The manifest intention of the framers of the Constitution was, primarily, to give a right of appeal to the Supreme Court from all final judgments of circuit and chancery courts, but to vest in the Legislature the power to prescribe regulations as to manner of taking appeals and time within which the same may be taken and prosecuted. This is, we think, what is meant by the words “under such restrictions as may from time to time be prescribed by .law.” » To construe it otherwise would be to make it read that the Supreme Court shall have only such appellate jurisdiction as may from time to time be prescribed by law. If the framers of the Constitution had intended to so limit the jurisdiction of the court, doubtless they would have employed a more appropriate and less ambiguous form of expression to convey that meaning. We therefore hold that it was beyond the power of the Legislature to prohibit an inquiry in this court as to the sufficiency of the evidence to sustain the amount of damages assessed by a jury, or require a litigant to surrender his right of appeal as a condition upon which he may accept the reduction by the trial court of an excessive verdict.
After careful reconsideration of the evidence in the case, we are constrained to believe that the verdict is for an excessive amount of damages. We said in the former opinion that the evidence warranted a verdict for $4,690 damages to cover the probable contributions of the deceased to the support of his family. This is certainly the utmost limit to which the jury could have gone upon this element of damages. If we indulge in the presumption that the jury confined the verdict to the limits warranted by the evidence as to this element, it leaves the sum of $5,310 which must have been assessed to cover damages for loss of the care, attention and moral training of the father to his children. It is difficult to determine what amount should be allowed upon this element of damages. It is indeterminate, and is ascertained by no fixed rules for admeasurement, and is left to the sound discretion of the jury. Yet there must be some limit to the amount to be allowed, and it is the plain duty of the appellate court to see that the just limits are not exceeded. It is often said that where loss of limb is sustained and great suffering endured, no amount of money will compensate therefor; that no amount of money might induce a person to voluntarily undergo the loss of limb and consequent suffering; yet that would be a highly improper basis upon which the damages should be estimated. It is the duty of courts and juries to allow such a sum as will fairly compensate for the pecuniary loss. So, in a case of this kind no amount of money can fully compensate children for the distress of mind suffered by them in the violent and painful death of the father, and in the loss of his affectionate care and attention, but the court must ascertain some just amount to allow a fair compensation for the injury. Railway Co. v. Robbins, 57 Ark. 384; Railway Co. v. Maddry, 57 Ark. 306; Railway Co. v. Sweet, 60 Ark. 550.
Believing, as we do, that the amount allowed by the jury, either upon one or the other of the two elements of damages, was excessive, it becomes our duty to remand this case for a new trial, or to require the plaintiff to remit the judgment down to such an amount as we can say the evidence fully warranted, there being no errors of law in the proceedings.
We think that upon the whole proof, considering the earning capacity of the deceased and the amount of contribution he would probably have made to his family, together with the proof upon the other element of damages, $8,000 will compensate for the loss as fully as pecuniary compensation can be rendered. So, if the plaintiff will within fifteen days after this day, remit $2,000 of the judgment, the same will be affirmed as to the remainder; otherwise it will be reversed, and the cause remanded for a new trial.
It is so ordered.