On Petition foe Eeheaeing.
Caldwell, J.17. *63218. *631Appellant has filed a petition for a rehearing urging among other things that the damages assessed by the jury are excessive. This point was duly presented by appellant in its original brief, and *632was considered by the court. As a result of a careful reexamination of the ease, we have concluded that the damages assessed are excessive within the spirit of the rule that governs in such cases in this court. It follows that the petition for a rehearing should be granted. In our judgment, however, while such a conclusion affords a basis for an unconditional reversal,' it does not necessitate such a disposition of the appeal. It has long .been the practice, where the recovery is found to be excessive, in cases presenting a definite standard by which the proper amount may be estimated with reasonable accuracy, for trial courts and courts of appellate jurisdiction to permit the prevailing party to remit with a new trial or a reversal as the alternative. Fairbanks v. Warrum (1914), 56 Ind. App. 337, 104 N. E. 983, and authorities cited. Moreover, in eases such as this, where there is .no definite standard by which to measure the damages and the trial court in considering a motion for a new trial, which contains an assignment of excessive damages as grounds, finds such assignment to be true, it has become an established rule that the trial court may permit the successful party to remit the excess or grant a new trial if he fails to elect to do so. Tucker v. Hyatt (1898), 151 Ind. 332, 51 N. E. 469, 44 L. R. A. 129; Cleveland, etc., R. Co. v. Beckett (1895), 11 Ind. App. 547, 39 N. E. 429; Evansville, etc., Traction Co. v. Broermann (1907), 40 Ind. App. 47, 80 N. E. 972. That a like rule prevails in a number of jurisdictions, see note to Tunnel Mining, etc., Co. v. Cooper (1911), 39 L. R. A. (N. S.) 1064.
The action of a trial court in passing on a motion for a new trial containing an assignment of excessive damages is reviewable by the courts of appellate jurisdiction in this State,' and such courts are authorized to reverse and direct a new trial in a proper case where the damages assessed -are found on appeal to be excessive. As a practical proposition, the power to determine that damages assessed are *633excessive carries with it necessarily the implied, power to determine what amount of damages would not be excessive. That is, the rule that trial courts may permit the prevailing party to remit down to a certain amount, and thereupon place the stamp of its approval on such amount as not being an excessive recovery, can be sustained only on the theory that trial courts may determine not only that a certain recovery is excessive, but also that a certain amount less than such recovery is not excessive. It follows that if courts of appellate jurisdiction in reviewing the action of the trial courts may determine that a certain recovery, although approved by the trial court, is in fact excessive, such courts may also determine what amount is not excessive. In order to determine that a certain amount is excessive, it is necessary to measure it by a certain other amount first determined not to be excessive. That courts of appeal in many jurisdictions do direct conditional remittiturs in cases such as this see Burdict v. Missouri Pac. R. Co. (1894), 123 Mo. 221, 27 S. W. 453, 45 Am. St. 528, 26 L. R. S. 384, and note; 4 L. R. A. Extra Ann. 67; Chitty v. St. Louis, etc., R. Co. (1899), 148 Mo. 64, 49 S. W. 868; Chitty v. St. Louis, etc., R. Co. (1902), 166 Mo. 435, 65 S. W. 959; Arkansas, etc., Cattle Co. v. Mann (1889), 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854.
Except as to the element of an excessive recovery, there is no error in the record for which there should be a reversal. Under the circumstances, it is our judgment that the ends of justice will be attained by permitting appellee to remit. The petition is therefore granted, and the mandate modified to the effect that it is ordered that if within twenty days appellee shall file in this court a remittitur in the sum of $1,500, to be effective as of the date of the judgment below, the judgment will be affirmed for the residue in the sum of $4,500; otherwise, the judgment will be reversed with instructions to the trial court to sustain the motion for a new trial; costs in either case against appellee.
*634Note. — Reported in 108 N. E. 29; 109 N. E. 404. Remittitur when excessive verdict is granted through passion or prejudice, see 3 Ann. Cas. 939; Ann. Cas. 1912 C 509. See, also, under (1) 28 Cyc. 1358, 1465; (4) 28 Cyc. 1447; (5) 28 Cyc. 1455; (6) 28 Cyc. 1476; (7) 28 Cyc. 1450, 1462; (8) 3 C. J. 808, 1336; 2 Cyc. 693, 983; (9) 28 Cyc. 1478; (10) 28 Cyc. 1422; (11) 28 Cyc. 1512; (12) 28 Cyc. 1425; (13) 28 Cyc. 1427; (14) 3 Cyc. 245; (15) 3 Cyc. 388; (16) 38 Cyc. 1809; (17) 13 Cyc. 126; (18) 3 Cyc. 435.