(dissenting.) The rule of practice as to remittitur that prevailed in this court from its organization till 1882 was to allow a remittitur only in actions growing out of contract, or where there was damage to property and the value of the property furnished the exact measure of damage, and in such cases only where the remittitur could cure the only error committed. Railway v. Hall, 53 Ark. 7, and cases cited. In 1882 this court established the rule of allowing a remittitur in actions of tort as well as contract. But a remittitur was not allowed in actions of tort except in cases where the only error was an excessive verdict. Little Rock & Fort Smith Railway Co. v. Barker, 39 Ark. 491. Judge Sandels in Railway v. Hall said that the rule established in Little Rock & Fort Smith Railway Co. v. Barker, supra, “is certainly the limit of the law.”
Since the decision in Little Rock & Fort Smith Railway Co. v. Barker, this court, until the present time, has uniformly followed the rule established by that case, and has held that a remittitur would be allowed only in cases where the only error was the excessiveness of the verdict. St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 628; St. Louis, I. M. & S. Ry. Co. v. Adams, 74 Ark. 326. In St. Louis, I. M. & S. Ry. Co. v. Waren, supra, Judge Battle, for the court, said: “The theory upon which a remittitur is allowed is that the appellant has no just complaint save that the. damages are excessive.” In St. Louis, I. M. & S. Ry. Co. v. Adams, supra, Judge Riddick for the court states the same proposition as follows: “Where the right to recover is clear, and has been established by the verdict of the jury, and where the errors committed- in the trial go only to the enhancement of the amount of the verdict, and do not affect the question of whether defendant is liable or not, then, if the verdict be excessive or if, on account of improper evidence, or improper argument of counsel tending to enhance the amount of damages allowed, the court is not able to say from the evidence that the verdict is not excessive, and that the defendant was not prejudiced, in respect to the amount of the damages assessed, by such improper evidence or argument, the court may, in its discretion, name a sum which is clearly not excessive, and as a matter of grace to the plaintiff allow him to accept judgment for that amount, instead of a new trial.”
In the case of St. Louis, I. M. & S. Ry. Co. v. Waren, supra, a child two and a half years old was run down by a train. Both of his hands were cut off, and one leg and foot were so seriously injured that he could only move about by hopping. The evidence was conflicting on the question of appellant’s liability. One of the attorneys for appellee in his argument said: “For almost that length of time (two years) the plaintiff in this case, poor and poverty-stricken, by changes of venue, by motions for continuances, and by those means known to those lawyers who undertake to conduct the railroad cases in this country” — at this point the defendant objected to the remarks, and the court said to the attorney. “There is an exception to your remarks.” The attorney then continued: “I stand on the remarks. The record shows everything I have said. By those means, I say, and for that length of time they have succeeded in holding the plaintiff in this case in abeyance, but I am proud to say to you, gentlemen of the jury, today that we have them at last where they can shirk no longer by any means known to the law, and that we now have the privilege of presenting to a jury of twelve honorable and honest and impartial jurors this case, and the injuries to Ester Waren.” Objection was made at the time to the remarks, but the court permitted the attorney to proceed and make the remarks to the jury as indicated. At the close of the attorney’s argument, however, the court instructed the jury that the above remarks (calling the jury’s attention specifically to them) were improper, and that they should pay no attention thereto. There was a verdict for $40,000. This court held in that case that the verdict was excessive, and that the remarks of counsel were prejudicial, notwithstanding the admonition of the court to the jury not to consider them, and reversed the judgment and remanded the cause for new trial. In refusing to allow a remittitur to be entered to cure the error of the improper argument Judge Battle announced the rule already quoted, and said further: “We can not say that the appellee’s right to recover is free from doubt. The testimony is conflicting, and to assume that appellee had the unquestionable right to a verdict for some amount we would be compelled to hold that much of the evidence was entitled to no credence.”
In the case of St. Louis, I. M. & S. Ry. Co. v. Adams, supra, there was no conflict in the evidence as to the facts. The undisputed evidence showed clearly that the railway company was liable for the injury it .had caused. The appellee In that case was permitted, over appellant’s objection, to state that he had a family of ten or twelve to support, and that he did not receive much assistance from them in making crops.” The court, through Judge Riddíck, announced the rule already quoted from that case, and cited the former cases of Little Rock & F. S. Ry. Co. v, Barker and St. Louis I. M. & S. Ry. Co. v. Waren. The court consistently followed the rule in allowing a remittitur to cure the error in permitting the improper evidence, because the company was clearly liable as shown by the uncontroverted facts, and the only effect that the improper evidence could possibly have in such a case would be to unduly enhance the verdict.
In the case at bar there were two glaring errors that could not be cured by a remittitur according to the above rule so firmly settled by previous decisions of this court. The testimony of A. H. Brown, the father of appellee, as correctly set forth in the opinion; related to matters that were alleged to have occurred at St. Vincent’s Hospital long after the injury, and while the appellee was there for treatment. 'Much of this testimony was the baldest kind of hearsay. For instance, the witness testified that he took it for granted from what the Sisters told him that a great deal of his son’s pain and suffering while at the hospital was caused by the manner of his treatment there, and then he proceeded to describe the manner of that treatment, saying that his son told him “that he laid there on one side for 24 or 30, or even 35 hours — a day and two nights.” Upon objection being made, the witness was allowed to answer a question as to the condition of his son while at the infirmary as follows; “I would go there in the morning, and they would let him lay there until the next morning without ever being dressed — 24 hours — and he seemed to be in a great deal of pain and misery, with pains shooting down into his hips and thighs.” This testimony was elicited by repeated questions from the attorneys for appellee to which objections were promptly interposed by the attorneys for appellant. But the court permitted it to go to the jury, and then finally instructed them not to consider any of it. The merest tyro in the law should have known that this testimony from its very inception to its close was wholly irrelevant and incompetent, and that its only purpose was to arouse the sympathies of the jury for the distressful and awful condition of appellee after the unfortunate injury and to inflame their passions, and excite their prejudice against appellant for causing and allowing such conditions to obtain.
The testimony was such as to put the jury in a frame of mind that would make it improbable, to say the least, that they would give to the real evidence and law of the case that calm, deliberate and impartial consideration essential to a fair trial. The court concedes in the opinion that this testimony improperly influenced the jury. For, says the court: “The verdict is clearly excessive, and the incompetent testimony of the father tending to show gross neglect of him by the hospital physicians and attendants, notwithstanding it was withdrawn and the jury directed to disregard it, may have influenced them in fixing the amount of the damages.” And again: “The amount of the verdict in this case, beyond a reasonable and proper estimate for compensation for loss of time and earning capacity, indicates that the said incompetent testimony that was admitted and but mildly withdrawn by the court, without any remonstrance with or rebuke of counsel for persisting in its introduction, doubtless had effect to arouse the sympathy of the jury and cause the award of excessive damages.” In another part of the opinion the court says of the above testimony that “at most it could have had no injurious effect as against appellant, but to arouse sympathy or excite the prejudice of the jury against it in its award of damages.”
The majority further conclude that, “having in mi,nd the condition met and the result of the possible prejudice to be eradicated,” etc., “the amount of the judgment must be reduced to $25,000 to prevent the damages being excessive.”
Our statute provides that “the former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: Fourth: Excessive damages appearing to have been given under the influence of passion or prejudice.” Kirby’s Digest, § 6215. The verdict in the present case, being excessive in the enormous sum of $25,000, shows upon its face that it was the result of passion and prejudice. For such a large ?'«n in excess in a personal injury suit could not have been the result of mere mistake or inadvertence.
The cause of the sympathy for appellee and of the prejudice against appellant that resulted in the excessive verdict is not far to seek. It was produced by the incompetent and irrelevant testimony above mentioned, and further by the remarks of United States Senator Jeff Davis, who in his closing argument to the jury, speaking of the employees of appellant, said: “But you know they get in a hurry. They want to get through. They have' got to get through. They work all day and all night. The law tries to limit them to 16 hours, but many a day they do and are required to work 24 hours. Sometimes they go to sleep. Sometimes they go off duty.” And, upon objection being made, he further said: "I am arguing why Parker was negligent, your Honor. If objected to, I will withdraw it. I know in this particular case they hadn’t worked over 16 hours.” The court said thereupon: “It’s withdrawn.” Here was an attorney occupying a high official position boldly stating as facts matters that were not in the record, and that he acknowledged himself, when objection was. made, did not exist, but were argued by him, as he avowed, for the purpose of showing why Parker, the engineer, was negligent.
The rule of law requiring an attorney to confine himselun argument to the facts in evidence, and not to make of himself a witness in his argument, and state facts not borne out by the record, was never perhaps more flagrantly violated, and yet this outrageous breach of the proprieties and privileges of argument and violation of the rules of law was not even rebuked by the presiding judge in the presence of the jury that heard it. The jury were not even directed to not consider it. The court simply remarked: “It’s withdrawn.” But such an egregious error could not be cured by the court with the simple remark: “It’s withdrawn.”
We have set out the facts in the case of St. Louis, I. M. & S. Ry. Co. v. Waren, supra, and the prejudicial remarks of the counsel in that case. The remarks in that case, to say the least, were certainly no more harmful in their effect upon the jury than were the remarks of counsel in this case. Moreover, in that case the court specifically called attention to the remarks of counsel, and told the jury they were improper, and instructed them to pay no attention to them. Yet the court in that case refused to cure the error of the improper argument by a remittitur, but for that cause reversed the judgment, and remanded the cause for a new trial. That case presented a much stronger reason why a remittitur should be entered than this, for in that case there was only the improper argument calculated to arouse the passion and prejudice of the jury, but in the case at bar added to such improper argument was the admission of the improper and most damaging incompetent testimony above referred to.
Since the court has found that sympathy for the appellee and prejudice against appellant entered into the verdict rendered in this case, we are unable to see how it is possible for the court to determine that such sympathy and prejudice only influenced the jury to enhance the amount; of the verdict. That might be true if there was no question as to the liability of appellant, but there was a sharp conflict in the evidence as to whether appellant was liable at all. There were only two witnesses to the occurrence, the appellee and the engineer of appellant. The testimony of the engineer tended to show that there was no negligence upon his part, while the testimony of appellee tended to show that there was. Motives for perverting the truth could not have been more powerful on the part of the engineer, who was a mere employee, than they were on the part of appellee, who was seeking a verdict for $50,000. If the sympathies and prejudices of the jury had not been wrought upon and stirred to the highest pitch by the improper methods above referred to, who can tell what their verdict would have been? It was within their province to have accepted the testimony of the engineer, rather than that of appellee, and but for these extraneous and improper influences they might have done so; at least it is not our province to say they would not have done so. Appellant had the right to have the question of its liability, as well as the amount of the damages, in case it was found to be liable, submitted to a jury whose minds were free from sympathy and from passion and prejudice. Every litigant has the right to a fair and impartial trial on every issue of fact in the case; and where the evidence is conflicting on the issue of liability, it is not within the province of this court to take the question away from the jury and fix liability and the amount of the damages.
The statute conferring upon this court the power to render such a judgment as the circuit court should have rendered does not give it power to arbitrarily determine disputed questions of fact. Neither the circuit court nor this court has such power as that. Under our judicial system that is peculiarly the province of the jury.
The decisions of this court from Walworth v. Pool, 9 Ark. 394, 405, and Sexton v. Brock, 15 Ark. 345, 356, before the present statute, as well as the decisions since, have been to the effect that where there is a conflict in the evidence on the question of liability, and where passion- and prejudice are manifest in the verdict, a new trial will be awarded. Kelly v. McDonald, 39 Ark. 387, 393; Texas & St. L. Ry. Co. v. Eddy, 42 Ark. 527; Springfield & M. Ry. v. Shea, 44 Ark. 264; Fordyce v. Nix, 58 Ark. 139.
In such cases a remittitur will not be allowed to cure the verdict; for, where there is a conflict in the evidence as to liability, it can not be said that passion and prejudice did not enter into the finding of the jury on that question as well as in the amount of the verdict. St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 620, 628. See also Railway v. Hall, 53 Ark. 7; Little Rock & F. S. Ry. Co. v. Barker, 39 Ark. 491.
Not only has this been the rule heretofore in our State, but, as observed by Mr. Justice Sandels in Railway v. Hall, supra, it is “prevalent in most of the States” of this Union.
The rule and the reason for it, as it exists in nearly all the States, is well stated in F. M. Davis Iron Works Co. v. White, 31 Col. 82, as follows:
“Where, in an action for personal injuries, and others.standing on like grounds, a verdict is excessive, and was returned as a result of passion or prejudice upon the part of the jury, it should be set aside in its entirety, and a new trial awarded; and that it is beyond the power of a trial court to order a remittitur as to the part which it deems excessive and enter judgment for the residue, because the entire verdict is vitiated by the improper motive, and it is impossible for the court to determine that any particular part is free from objection and some other part bad.”
And also in Burdict v. Missouri Pacific Ry. Co., 27 S. W. 453, as follows:
“If it can be seen, and fairly said, the jury gave the excessive verdict by reason of prejudice, passion or any other improper method, a new trial should be awarded, for the inference would be a fair one that the finding for the plaintiff was also brought about by improper influences, and this is especially so when there is any doubt as to the right of the plaintiff to recover.”
The rule is “ancient of days,” “full of wisdom” and of almost universal application. It can not be ignored without doing great injustice to any party entitled to invoke it. A failure to apply the rule in the present case, in our opinion, necessarily overrules St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 628, Railway v. Hall, 53 Ark. 7, and Little Rock & F. S. Ry. Co. v. Barker, 39 Ark. 491, and many previous decisions of this court. It is a dangerous precedent that will surely encourage a recurrence of similar methods in many future trials, and besides it denies to appellant that .fair and impartial trial vouchsafed to every litigant by the Constitution and statutes of our State. We feel constrained therefore to dissent.
Hart, J., eoncurs.