Concurring Opinion.
Rabb, J.In concurring in the decision of the court, as expressed in the majority opinion, I desire to refer to the question of practice decided by the court in holding that the court below committed no error in requiring the appellee to remit a portion of the damages assessed by the jury. The motion for a new trial, on the ground that the damages assessed by the jury were excessive, concedes that a verdict in favor of the appellee was correct, and that the only error consisted in an erroneous assessment of the damages. There can be no question but that the court had the power to pass upon this question of whether the amount of the damages was too much. In passing upon that question the court necessarily determines in its mind what would be ■ the proper amount of the appellee’s damages.
The Supreme Court of the United States, in the case of Arkansas Valley Land Co. v. Mann (1889), 130 U. S. 69, 9 *53Sup. Ct. 458, 32 L. Ed. 854, in a well-considered opinion rendered by Harlan, J., in which this question was directly before the court, in affirming the right of the court thus to require the successful party to remit a part of the damages assessed, as a condition upon which the court will render judgment upon the verdict, said: “The practice [of requiring a remittitur] is sustained by sound reason, and does not, in any just sense, impair the constitutional right of trial by jury. It cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury and grants a new trial where the damages are palpably or outrageously excessive. * * * But, in considering whether a new trial should be granted upon that ground, the court necessarily determines, in its own mind, whether a verdict for a given amount would be liable to the objection that it was excessive. The authority of the court to determine whether the damages are excessive implies authority to determine when they are’ not of that character. To indicate, before passing upon the motion for a new trial, its opinion that the damages are excessive, and to require plaintiff to submit to a new trial, unless, by remitting a part of the verdict, he removes that objection, certainly does not deprive the defendent of any right, or give him any cause for complaint. Notwithstanding such remission, it is still open to him to show, in the court which tried the case, that the plaintiff was not entitled to a verdict in any sum, and to insist, either in that court or in the appellate court, that such errors of law were committed as entitle him to a new trial of the whole ease.”
Numerous cases are referred to in this opinion as supporting the decision of the court, among others the very well-considered case of Blunt v. Little (1822), 3 Mason 102, Fed. Cas. No. 1,578, in which the opinion of the court, to the same effect, was delivered by Mr. Justice Story. The great weight of authority supports this power of the court. See Northern Pac. R. Co. v. Herbert (1886), 116 U. S. 642, 6 *54Sup. Ct. 590, 29 L. Ed. 755; Hayden v. Florence Sewing Mach. Co. (1873), 54 N. Y. 221; Guerry v. Kerton (1845), 2 Rich. (S. C.) 507; Young v. Englehard (1834), 1 How. (Miss.) 19; Diblin v. Murphy (1849), 3 Sand. 19; Burdict v. Missouri Pac. R. Co. (1894), 123 Mo. 221, 27 S. W. 453, 26 L. R. A. 384, 45 Am. St. 528; 18 Ency. Pl. and Pr., 134, and cases cited.