(dissenting).
I dissent. The opinion of the majority only adds confusion to confusion. In my judgment, no distinction can logically be made in applications for new trials under G-. S. 1894, § 5398, subd. 4, between actions-in tort and other actions; between actions where there are no fixed rules for ascertaining the amount of damages, and actions where there are such rules. There is no distinction between the application of the doctrine of “prejudice and passion” in a case where such influence arises from the mere size of the verdict, and a case where it is inferred from the demeanor of the witnesses or the conduct of the trial.
There have never been any well-defined rules established by the decisions of this court as to this matter. In Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, in an action for trespass, it was held that an application for a new trial upon the ground that the verdict was excessive or inadequate, because of passion or prejudice, should be made under the fourth subdivision; and in the opinion it was stated by Chief Justice G-ILFILLAN that it was not enough that the damages may, in the opinion of the court, be too large or too small, but it must appear that they were given under the influence of passion or prejudice. There is nothing in the opinion, however, indicating an intention to draw the distinction now made. Lane v. Dayton, 56 Minn. 90, 57 N. W. 328, was an action to recover for professional services, and plaintiff recovered $8,000. Upon an application for a new trial under the *416fifth subdivision, it was granted upon the ground that the verdict was not justified by the evidence. The only point before the court was whether or not, under the fifth subdivision, a new trial’ could be granted upon the ground that the evidence did not support so large a verdict. The question of passion or prejudice was not involved, and it was correctly decided that the appeal was properly taken under that subdivision. But the distinction attempted to be made in the opinion in that case between damages which rested in the discretion of the jury, and actual damages only, is unsound, and ought not to be adopted as a fixed rule of practice. State v. Shevlin-Carpenter Co., 66 Minn. 217, 68 N. W. 973, was an action in conversion, and the plaintiff secured a verdict for $9,000. Application for a new trial was made under the fourth and fifth subdivisions, and it was held that the new trial was properly granted under the fifth subdivision. In the opinion it is stated there was no difference, in respect to the application of subdivision 4, between actions in tort and civil actions, and that the fourth subdivision had reference more particularly to cases where the amount of damages rested in the discretion of the jury; but the court was not satisfied to rest its decision upon such narrow grounds, and it was based upon the principles arising under the fifth subdivision.
A definite and simple rule of practice should be defined at this time in regard to appeals under the fourth and fifth subdivisions, and it should be established that, in all cases where a verdict is attacked upon the ground that'it is excessive or insufficient because of prejudice or passion, the application for a new trial should be made under the fourth subdivision. It is immaterial whether or not such passion or prejudice arises from the nature of the evidence, the amount of the verdict, or the method of conducting the trial; if the verdict is attacked upon the ground that it has been influenced by passion and prejudice of the jury arising from any cause, the question should be reviewed under the fourth subdivision. And, in determining that question upon a motion for a new trial, the trial court should exercise a sound discretion, within the principles laid down in the case of Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87. In addition *417to the excerpt from that case embraced within the majority opinion, the following language is pertinent:
“A motion for a new trial on this, as on somé other grounds, appeals in a measure to the discretion of the trial court. * * * This does not mean that the motion is to be granted or denied at the mere' pleasure or fancy or feeling of the court, but that, the matter being one which cannot be determined by the application of definite and precise rules, it is to be acted upon in the exercise of sound practical judgment, in view of all the relevant facts of the particular case, or to use a current expression, in view of the 'whole situation.’ * * * It is to be remembered that in determining upon an application for.a new trial on the ground of an excessive verdict, as on other grounds, the trial judge occupies a position of practical advantage over an appellate court, — especially when, as in this instance, the plaintiff is one of his own principal witnesses. There is a certain atmosphere of the case and trial, well known to the profession, which cannot be put upon paper.”
And in such a case the question for review before this court iswhether or not the trial court abused its discretion in ruling upon* the matter. As stated in the opinion in Pratt v. Pioneer Press Co., supra, at page 222:
“When, then, the propriety of an order granting a new trial for' excessive damages comes before an appellate court for review, the question is not precisely that presented to the trial court, as above indicated, but whether it clearly appears * * * that the trial court abused its sound discretion, or, as more fully stated, that it failed to exercise a sound, practical judgment upon all the relevant facts before it.”
In the present case, appellant made application for a new trial under both the fourth and fifth subdivisions, and the court granted a new trial unless plaintiff should elect to accept the amount of $100, and it does not appear under which of these two subdivisions the motion was granted. In the majority opinion it is stated that the order was predicated upon the grounds mentioned in the fourth subdivision, but I am unable to discover any reason why the order of the court is not sustainable upon the ground that the evidence did not justify the verdict, regardless of the question of prejudice and passion. In effect, the court holds that a new trial could not be granted under either subdivision.
*418To my mind, the order of the court below should be affirmed upon either of two grounds: First. Under the fourth subdivision, the record discloses enough to indicate that the conduct of the trial, in connection with the nature of the evidence as to the family quarrel, was sufficiently unduly to influence the jury in rendering their verdict, so it cannot be said that the court, in reviewing that question,'did not exercise a sound legal discretion. Second. It also appears that the order of the court should be sustained under the fifth subdivision, under the doctrine of Hicks v. Stone. The evidence disclosed the fact that the parties interested were related by marriage, but there had existed a family quarrel of long standing, and that abusive and vile names had been hurled at each other. Under' such circumstances, it is a doubtful question whether or not one personally engaged in the quarrel and calling names was damaged to any considerable amount by the language complained of.