This case has been before us upon an appeal from an order overruling a demurrer to the answer, our opinion being reported in Gamble v. Keyes, 35 S. D. 644, 153 N. W. 888. Reference is made to such opinion for a statement of the nature •of the cause of action and the claims of plaintiff. After such appeal a trial was had and a verdict returned in the full amount *596bought by plaintiff, $21,013.50. The present appeal is from an order setting aside such verdict and granting a new trial.
[1] Section 301, C. C. P., provides that a new trial may be granted for the following among other causes:
“5. Excessive damages, appearing to have been given under the influence of passion or prejudice.
“6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.”
[1] The motion in this case was made upon the first ground announced in subdivision 6. There seems to be a marked lack of harmony in the decisions as to when a motion for new trial should be made under subdivision 5 and when under subdivision 6. Perhaps the best and clearest statement of the rule announced by some of the courts and approved by Haynes in his work on New Trial and Appeal at section 94 is that found in Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, where the court said:
“In actions to recover unliquidated damages, such as actions for personal injuries, libel, and slander, and similar actions, where the plaintiff’s damages cannot be computed by mathematical calculation, and are not susceptible to proof by opinion evidence, and are within the discretion of the jury, the motion for new trial on the ground of excessive or inadequate damages should be made under * * * [fifth subdivision, supra] ; and in such cases the court will not interfere with the verdict unless the damages awarded appear clearly to be excessive or inadequate, as the case may be, and to have been given under the influence of passion or prejudice. On the other hand, in all actions, whether sounding in tort or contract, where the amount of damages depends upon opinion evidence, as the value of the property converted or destroyed:, the nature and extent of injuries to person or property, the motion for new trial should be made under * * * [sixth subdivision, supra], and in cases of doubt, or where both elements of damages are involved, under both subdivisions.”
[2] We doubt the soundness of any rule of law that would give to the trial court the universally conceded power to review the judgment of a jury as to: the proper amount of damages to be awarded, when such judgment rests upon the opinions of witnesses, and would deny such trial court the power to review the deter*597mination of the jury as to the amount to be awarded when such determination flows from the unrestrained exercise of choice or will on the part of the jury, howsoever honest -such' exercise of choice or will may be. If the ends of justice are best subserved by giving to the -trained mind the power to review the action of the untrained mind in the one class of cases, they surely will be best subserved by allowing the trial judge to grant a new trial in the other class of cases whenever he feels that a verdict is grossly unjust, whether because too large or too small, and regardless of whether he deems such verdict the honest conclusion of the jury. In Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422, the court said:
“There is a cross-appeal here in which the plaintiff insists that the court was not warranted in the reduction of the award made by the jury. She contends that, since the court expressly finds that the amount awarded was not the result of passion and prejudice, it was not warranted in setting up its- judgment against that of the jury, and that the sum which she was coerced to remit should be restored. An approval of the verdict by the- trial court was essential to the entry of a judgment, -and it could not approve it unless, in its judgment, -the testimony warranted it. Bvidently the court utas satisfied with the findings of the jury to the effect that the defendant ivas negligent, and that, by reason of his negligence, a liability arose in favor of plaintiff, but it differed unth the jury as ia the extent of the injury and loss sustained. It concluded that, while the jury was not influenced by passion or prejudice the award was, in his- judgment, manifestly excessive. Although the assessment of damages is- peculiarly within the province of a jury, and although a verdict should never be disturbed by the trial court merely because its judgment inclines the other way nor unless the verdict is clearly excessive, the court must nevertheless approve the award, and- in doing so it cannot shirk responsibility, but should act on its -own judgment. If it is satisfied that the evidence does not sustain the award of damages, it should either modify the verdict or set it aside.”
As directly in point on this question, we quote the following from Smith v. Maddox-Rucker Banking Co., 135 Ga. 151, 68 S. E. 1031:
*598“The Count of Appeals certified tp the Supreme Court the following questions:
“‘(i) “Has the judge of a trial court, upon a motion for a new trial containing the usual grounds and a further general ground that the verdict is excessive, the power to set aside the verdict in a case of libel, slander, or in other similar cases in which the sole measure of .the damage is the enlightened conscience of the jury, when, in his opinion, the verdict is unreaso-nábly too large, and there is nothing in the record to- show that the verdict is the result of gross- mistake or undue bias?
“‘(2) Where the jury returns a verdict in a case of the kind mentioned above, and the trial judge sets it aside on the ground that, in his opinion, ilt is excessive, and it is the opinion of this court that the verdict is not so large as to raise the inference that it was the result of gross mistake or bias, or prejudice, is it proper -that this court reverse the judgment of the trial court awarding the first grant of a new trial on this, ground alone, there being undisputed evidence tending to show that the plaintiff is entitled to recover in some amount (see Holland v. Williams, 3 Ga. App. 636 [60 S. E. 331], and cases cited therein, and Brown v. Autrey, 78 Ga. 756 [3 S. E. 669], and cases cited) ?’ * * *
“Beck, J. We are of the opinion that the rule announced in the case of Cox v. Grady, 132 Ga. 368, 64 S. E. 262, is comprehensive enough to embrace cases of the character of the instant case to which the certified questions relate. The ruling there announced answers in the affirmative the first and third questions, and requires an answer in the negative to the second question; and: the scope of the discussion in the opinion and in-, the cases cited in the Cox Case render further argument unnecessary. We are satisfied with the reasoning in- that case and in the case of Holland v. Williams, 3 Ga. App. 636, 60 S. E. 331.”
We believe that our views are in harmony with the great weight of authority. Cables v. Bristol Water Co., 86 Conn. 223, 84 Atl. 928; Devine v. City of St. Louis, 257 Mo. 470, 165 S. W. 1014, 51 L. R. A. (N. S.) 860; Curtiss v. Starr & Co., 85 Cal. 376, 24 Pac. 806; City of Sedan v. Church, 29 Kan. 190; Dewey v. Railway Co., 31 Iowa, 374.
*599[3,4] But, even if we should subscribe to the rule announced by the Minnesota court, it would avail appellant nothing. Such rule has no application to any determination of the amount of damages to be allowed, in so far as such amount may depend' upon the existence of some one or more causes of action or elements of damages the existence of which is challenged by evidence; nor to any such determination, in so far as the amount thereof rests upon ¡the nature or extent of an alleged injury the nature or extent of which is challenged by evidence. The existence of any cause of action or element of damages, as well as the nature and extent of damages as distinguished from the monetary measure of such damages, are matters in which the judgment of the jury must be based upon the evidence, and every verdict, in so far as it rests upon disputed facts, is subject to review' by the trial court, regardless of any question of its being the result of passion and prejudice. A. sues-B. for damages alleged to flow from personal injuries suffered through the negligence of B. A. claims ¡two injuries as the result of the negligent act — one slight, the other severe. A verdict is rendered which is not so unreasonable -in amount as to raise a presumption that it was the result of passion or prejudice, if in fact the jury found that A. suffered both injuries, and that both were the result of an accident chargeable to the negligence of B.; but such verdict is unconscionable in amount and so excessive as to indicate that it was the result of passion and prejudice, provided the jury found either that A. had not suffered the severe injury, or that it was not the result of the accident pleaded. No “opinion evidence” was introduced. A new trial is sought, and, upon a review of the evidence, either one or both of the following facts appears to the trial court to be established by a clear preponderance of the evidence, though there is evidence to the contrary which, if undisputed, would have warranted the verdict which was returned: (a) That B. was not guilty of any negligence; (b) that A. did not suffer the severe injury, or, if he did, that it was not the result of the accident complained of. In addition to the above it appears clear that, even though A. be conceded the right to recover for both injuries, the amount of such verdict is excessive, though not so excessive as to' create a presumption that it was the result of passion and prejudice. Let the trial *600court be of the opinion that it could not review the discretion exercised by the jury, in its determination of the amount of damages to be allowed- where the verdict was not so excessive as to raise a clear presumption that it was the result of passion and prejudice; must, then, the trial court refuse a new trial if it finds the facts to be as stated in either or both “a” and “b” above, unless it also finds that such verdict was the result of passion and prejudice? It is apparent that, under “a,” the trial court might conclude: (i) That the jury honestly, but erreoneously, found B. guilty of negligence; (2) that the jury found B. not guilty of negligence, but misunderstood the instructions of the court advising it to find, .in B.’s favor in such event; (3) that the jury found, in accordance with the weight of evidence, that B. was not negligent, and understood the court’s instructions, but that it was influenced by passion and prejudice, and its verdict resulted solely therefrom. Under No. 3 it would be conceded that a new trial could be-granted. But justice requires a new -trial as much if the court concludes' the facts to. be those set out in 1 or 2. Under “b” the trial court might conclude: (4) That the jury honestly, but erroneously, found that B.’s negligent act caused the severe injury; (5) that the jury found, -in accordance with the weight of evidence, that B.’s- negligence caused only the slight injury, and that the excessive verdict was the result of passion and prejudice. Under 5 .it would be conceded that a new trial could be granted, Should it be denied under 4? The “Blind Goddess” would certainly be unable to see wherein it would be justice to B. to grant a new trial under facts 3 and 5 and deny it under 1, 2, and 4. It is therefore clear that, even though the rule announced in Mohr v. Williams, supra, should -be recognized as correct, it should be limited in its application to the right to review but -one thing, the amount of damages allowed on undisputed facts.
[5] Therefore, even if we were to adopt the rule announced in Mohr v. Williams, it does not follow that we must hold that the trial court could not set aside this verdict as excessive, even though he did not believe such verdict to be the result of passion or prejudice, where such excess resulted, in his opinion, not from the jury allowing too much damages for some -one or more items of injury pleaded where the evidence sustains some damages, but *601íesulted from the jury allowing damages for items of injury which items the court found not to have been established. A glance at the complaint shows that the allegations as to damage are contained in paragraph's 3 and 4. In paragraph 3 there is a claim of $20,000, and in paragraph 4 one of $1,013.50. Respondent, in his statement of the particulars wherein the evidence was insufficient to support the verdict, contended that there was no evidence to prove the several items of injury set forth in paragraph 3; and he contended that there was no evidence to prove malice, without which malice there could be no punitive damages based upon any compensatory damages which the jury might have allowed under said section 3. Respondent in no manner questioned appellant’s proof of compensatory damages for the wrongs set forth in paragraph 4, the $1,013.50. Respondent contends that appellant failed to establish any right toi compensatory damages under paragraph 3, because there was tío evidence to establish that she “was injured in her good name among her friends and associates and humiliated and disgraced in the opinion of her friends and associates.”
We thus have a case where it is contended that the jury gave a verdict that was excessive because including too' many items of injur}' and an unsupported allowance of punitive damages, and not one excessive because it allowed too. much on any one item of injury established by the evidence.
While respondent might have submitted' to the trial court the question of whether the jury were influenced by passion or' prejudice, and, if he 'had, would have been entitled to a new trial upon the record before us, he saw fit not to raise that question, but to submit to the court the sole question of whether, under the whole record, in the opinion of the trial court, such verdict was supported by the evidence.
[6, 7] In determining whether the trial court abused its discretion in the granting of the new trial, we must view the evidence, not most favorably to. the verdict, as we would if the verdict had been sustained, but most favorably to the conclusion reached by the 'trial court, as, in weighing the sufficiency of the evidence to support the allegations of injury, suffered and of malice, the trial court was just as free as was the jury to determine where the weight of evidence was. It is clear that the trial *602court, if it -believed the evidence on behalf of respondent, and not -that on- behalf of .appellant, where such evidence conflicted (and for -the purposes of this- appeal we are bound to presume it did so believe), could- -only find that the facts were as- contended for by respondent. Under no view of the evidence -could the trial court or the jury rightfully find -compensatory damages to any material amount for the injuries pleaded in paragraph- 3, there being absolutely no evidence -to sho-w that appellant “was injured in her good name among her friends and associates,” or that she w-as “humiliated and disgraced in the -opinion of her friends and associates”; for all the evidence shows she still stands as s-he-formerly did in the -estimation of such friends and associates. Appellant did not allege that she herself suffered any s-hame or felt any disgrace. It is urged that -the invasion of the home was the most serious element of damages. Conceding -that to- be so, no one would claim that the w-hc-le $20,000 was awarded for that wrong. Furthermore, there is no claim of damages based upon the invasion -of the home other than that for injury to -the property, for -physical injury to appellant, and for the injuries set forth in the above quotations..
[8] This court has most clearly announced what malice must be proven .as a basis- for punitive damages (Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386) :
“In order to- justifjr the imputation of malice, within the rule of punitive damages, the injury must have been conceived in a .'Spirit of mischief, and partake -of a criminal or wanton nature. City of Chicago v. Martin [49 Ill. 241] 95 Am. Dec. 590, and cases cited in the notes. As applied to torts, an act, in order to be malicious, must be wrongful, and intention-ally done, with an evil mind, and -a wish to injure another. Bouvier’s Law Dict.; Pickett and Wife v. Creek, 20 Wis. 358. * * * Our state provides for exemplary damages -o-nly as a means of punishment ‘when the defendant has been guilty of oppression, fraud or malice, actual or presumed.’ Rev. Civ. Code § 2292. Malice is defined to be a ‘wicked intention to do- an inpury.’ ‘In trespass, when the injury has been wanton or gross and outrageous. Nbt merely the doing of an unlawful or injurious aot, but an ac-t conceived in a spirit of mischief or of criminal- indifference to civil obligation.’ Anderson’s Law Diet.”
*603[9] There certainly can be no question but that, if the trial court believed defendant, and it had the right so to do, such court could only reach the conclusion that there was no malice, and therefore, plaintiff was entitled, at the most, to compensatory damages only. Upon this question of proof of malice as well as upon the other matters discussed above we quote from Domico v. Casassa, 101 Cal. 411, 35 Pac. 1024, the iltalicizing being ours:
"The granting or denying a new trial on the ground that the evidence is insufficient to justify the verdict, where there is -a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon this court, unless it appears that there has been an abuse of such discretion; and it is immaterial whether the evidence is insufficient to sustain all or-only a portion of the issues on which the judgment must depend. Whether the acts of the defendant were accompanied by oppression, fraud, or malice, so as to authorize the giving of exemplary damages, was a fact to be determined by the jury from the evidence before it, and upon this point there was a substantial conflict of evidence. The order of the pidge granting a new trial shows that in his opinion the evidence was insufficient to show that there had been any fraud, oppression, or malice on the part of the defendant. The cases cited by the appellant in which this court has refused to interfere with the verdict of a jury were cases in which the trial court had itself refused to grant a new trial or to reduce the verdict. The same principle which precludes an • interference by this court in such cases applies when the trial court has granted a new trial, either absolutely or conditionally. If there is no evidence upon an issue which is essential to the judgment, a verdict or finding upon such issue is an error of law which may be reviewed by this court (Mason v. Lord, 40 N. Y. 484: Conely v. McDonald, 40 Mich. 150) ; but, if the verdict or finding is made upon a conflict of evidence, the sufficiency of the evidence therefor is a question of fact, which the trial court is authorised to review, and, if in its opinion the verdict is against the weight of the evidence, it is its duty to set it aside (Dickey v. Davis, 39 Cal. 569; Sherman v. Mitchell, 46 Cal. 577; Irving v. Cunningham, 58 Cal. 306; Curtiss v. Starr, 85 Cal. 376 [24 Pac. 806] ; Bjorman v. Fort Bragg R. Co., 92 Cal. 500 [28 Pac. 591]). Its action in so doing is the exercise of a legal discretion, *604but is not an error of law which can be reviewed by this cowt. Breckenridge v. Crocker, 68 Cal. 403 [9 Pac. 426] ; Nally v. McDonald, 77 Cal, 284 [19 Pac. 418] ; Townsend v. Briggs, 88 Cal. 230 [26 Pac. 108] ; Crooks v. Miller, 89 Cal. 35 [26 Pac. 615].”
The order of the trial court .is modified to the extent that a new trial be denied if plaintiff will accept a judgment of $1,013.50. As so modified, it is affirmed, with costs.