— Some of the rulings in the opinion delivered by my learned colleague, Chief Justice Black, are of far reaching importance to the people of Missouri. They seem to me, with due respect, in direct conflict with the constitution, which declares that the right of trial by jury shall remain inviolate, as it existed when the fundamental law was adopted in 1875. Const. 1875, art. 2, sec. 28.
T. The right to a jury trial in ordinary actions has been supposed to be guaranteed to our citizens *244from a very early date. Const. 1820, art. 13, sec. 8; Const. 1865, art. 1, sec. 17.
At the time when the present constitution took effect, t¡hat right was conceded by the supreme court in all actions at law (excepting a small class, involving-long accounts, wherein a trial by referee was permitted).
An important incident to that right is the finality of the decision of the trial jury (if approved by the trial judge), upon all questions of -fact, in those-actions.
It has heretofore been considered the settled construction of the organic law, that the supreme court has no constitutional authority to review a decision of the trial court upon issues of fact in a case like that at bar.
On this point, a very recent utterance by the present chief justice, speaking for the whole court, is as. follows:
“While this court may determine whether there is. any evidence to support a given theory, still, where there is such evidence, it has no more power to review the finding of facts made by the court in actions at law than it has to review the findings of fact made by a jury in like cases.” Krider v. Milner (1889), 99 Mo. 145.
This conforms to the ruling in an early case, that, “the decision of the circuit court, sitting as a jury, will not be set aside, unless the record shows that the circuit court was called on to decide some question of law, and that its decision was wrong.” Vaughn v. Bank (1845), 9 Mo. 375.
In Hamilton v. Boggess (1876), 63 Mo. 252, it was-unanimously said: “We wish it to be understood that it is not our province to determine facts or review *245the findings of juries or courts on them, except in chancery cases.”
It is unnecessary to quote more decisions to sustain so clear a proposition.
In every volume of our reports, cases can he found which directly assert it, or indirectly assume its correctness by referring to some question of fact as being one “for the jury.”
2. The question as to the proper sum to be awarded as compensation for the pain, disfigurement and permanent disability caused by the loss of an arm, is a question of fact, and as such it is not reviewable by an appellate court whose constitutional power of review in such eases extends to questions of law only.
It seems strange, at this day, to find this proposition disputed, or rather ignored.
It properly belongs to elementary law. 4 Minor’s Institutes, 757. It has frequently been declared, with more or less directness, in many precedents in Missouri, as well as in other jurisdictions.
In 1855 a verdict for $2,000 in an action for personal damages was reversed by the supreme court on the sole ground that it was excessive. Goetz v. Ambs, 22 Mo. 170. But on a second appeal, when the court was confronted with a still larger finding ($3,000), it affirmed the judgment in an opinion declaring that “another interference by the court would not only be an unwise exercise of its power, but would seem to be a usurpation of the province of the jury.”' Goetz v. Ambs (1858), 27 Mo. 28.
This latter ■ decision, in effect, overrules the prior one in the same case, as to the right of the supreme court to reverse for excessive damages.
In Loyd v. Hannibal, etc., Railroad Co. (1873), 53 Mo. 514, a remittitur of part of the damages had taken place in the trial court, and whén the issue of an *246excessive verdict was raised on appeal, the court declared: “The amount of damages, as it originally stood, was large, perhaps greater than the injury sustained would seem to authorize; but as this sum was, by a remittitur, reduced to a sum satisfactory to the judge who tried the case, there is no ground for the interference of this court on that point.”
In Dale v. St. Louis, etc., R’y Co. (1876), 63 Mo. 460, the court unanimously said: “The verdict in this case on the first trial was set aside on account of the damages being, in the opinion of the court, excessive. A second verdict was for the same amount which the court refused to set aside, and any interference by this court would -be a usurpation of the province of the jury. (Goetz v. Ambs, 27 Mo. 34.)”
In Porter v. Railroad (1879), 71 Mo. 83, we find this ruling: “There have been three trials of this cause, and three verdicts for plaintiff, the first for $10,000, the second, $12,000, and the third for $10,000; and we could, with no propriety say, under these circumstances, that the damages are excessive.”
In a later case this passage appears: “The appellant contends that the damages are excessive. There is testimony to support the verdict, and the instructions taken together correctly state the measure of damages. In such eases we can not interfere.” State ex rel. v. Gaither (1883), 77 Mo. 306.
The principle, expressed or implied, underlying the five cases last cited is readily found.
If an award of excessive damages, in cases of this sort, constitutes an error of law, it could, and 'should, be corrected on appeal as often as it might recur; but if it involves only a question of fact, it is no more subject to review on the first appeal than on any later appeal.
The results reached in those cases, as well as the *247express terms of some of them, show that the court then considered that excessive damages, in actions for tort, did not raise an issue of law on appeal to this court.
No doubt, remarks may be found in some decisions to the effect that the supreme court will not set aside a verdict on the ground of excessive damages unless the latter are so great as to indicate passion or prejudice on the part of the jury. But those observations occur chiefly in cases where the court declined to interfere, and in which the distinction between the functions of the trial court and of the supreme court, under the constitution, was not discussed.
In Sawyer v. Railroad (1866), 37 Mo. 264, the court advanced an opinion that the damages were excessive, but refrained from placing the reversal of judgment on that ground.
In Kennedy v. Railroad Co. (1865), 36 Mo. 351, the court used the following language on this subject: “The ground urged for a reversal, that the damages are too large, is not good here. There was evidence to go to the jury, and where that is the case it is their peculiar province, under proper instructions from the court, to determine the amount. Before we are at liberty to interfere with a verdict, it must appear at first blush that the damages are flagrantly excessive, or that the jury have been influenced by passion, prejudice or partiality. When there is any evidence to support the verdict, it will not be disturbed; but this court will interfere when there is no evidence, or when the court below gives an instruction which is not authorized by the evidence.”
In Gregory v. Chambers (1883), 78 Mo. 294, and Pritchard v. Hewitt (1887), 91 Mo. 547, the court declined to set aside verdicts for wholly inadequate damages. Each verdict was for $1. In the former case *248the verdict was also against the evidence,, yet it was rightly held that those were questions of fact, and the ruling thereon by the trial court was conclusive. In the latter decision the court made similar remarks to those in the Kennedy case, as to the want of power in this court to interfere unless the verdict showed passion or prejudice on its face.
The same theory was approved by a majority of the judges of division one, in the very recent judgment in Boggess v. Metropolitan R’y Co. (1893), 118 Mo. 328.
In Gurley v. Mo. Pac. R’y Co. (1891), 104 Mo. 211, the second division denied the' right to require a remittitur on appeal where the damages were excessive, saying: “We do not think it within our province to assess the damages;” and that “we have no right to set ourselves up as triers of' facts and render another and different verdict.”
In Franklin v. Fischer (1892), 51 Mo. App. 348, the St. Louis court of appeals took the same view, declaring that “to enforce a remittitur on appeal is to destroy the integrity of the verdipt, and to substitute our judgment for that of the jury on a question which is eminently a question of fact.”
If the last two quotations are correct in holding the question under consideration to be one of fact, it follows logically and necessarily that it is a question not reviewable in any manner by this court, in actions of this description.
No basis has ever been stated for a distinction between this question of fact and' any other question of fact, with respect to the right of this court to review it.
Neither the constitution nor any statute makes such a distinction.
If it be held that this court may reverse the action of the trial judge and jury on one question of fact, in *249actions at law, it must be because of the possession of power to review all questions of fact in such cases.
Where judges of this court consider a finding of fact so far wide of that which they would render, in a given case, as to appear to them to indicate passion or prejudice of the jury, the nature of that finding is not thereby changed, nor does that opinion at once transform an error of fact into an error of law. The gravity of the mistake made by the constitutional triers of the fact does not enlarge the jurisdiction of this court, or authorize it to decide an issue not committed to, but excluded from, its reviewing power by the constitution.
But the opinion by the majority in the present case does not assert a right to interfere to reduce a verdict where it shows passion or prejudice. The court seems to abandon that position, but it then proceeds to take a far bolder one. It holds that mere excess in the finding is subject to review here and to correction, by substituting the verdict of four judges of this, court for the finding and judgment of the trial court, upon a question which is one of fact alone, as many of the strongest and ablest courts in other states have expressly held, as well as our own courts, already quoted.
The United States supreme court has so declared •on several occasions.
In Boggess v. R’y Co. (1893), 118 Mo. 340, an. excerpt from its opinion on that poiut in Railroad v. Fraloff (1879), 100 U. S. 24, will be found. . Since the latter ruling, the same principle has been several times applied in other cases. Railroad v. McDaniels (1882), 107 U. S. 454; Railroad v. Winter’s Adm’r (1892), 143 U. S. 60. In the Winter case (p. 75) the issue of excessive damages is expressly held to be one of fact and hence not re viewable by that court.
The courts of appeal of the United States have *250announced the same view, in one case where a verdict for $18,250 for personal injuries was challenged on the ground that it appeared to have been given by reason of passion and prejudice (Northern Pac. R’y Co. v. Charless (1892), 51 Fed. Rep. 562), and in another, where a verdict for $4,000 for libel was similarly questioned (Morning Journal Ass’n v. Rutherford (1892), 51 Fed. Rep. 513; 16 L. R. A. 803). It was held in both instances that the verdicts were not reviewable for excess, because the appellate court had power to review errors of law only.
In Illinois the supreme court formerly revised verdicts for excessive damages in law actions; but the laws of the state were then amended so as to declare, explicitly, that, the supreme court should have no power to review questions of fact. Since then, that court, recognizing that this question is one of fact, have held that it was not reviewable by them. Chicago, etc., Cab Co. v. Havelick (1889), 131 Ill. 179; Joliet Street R’y Co. v. Call (1892), 143 Ill. 179; Railroad v. Bode (1894), 150 Ill. 396.
This is the law in Michigan:
“Whether damages found by a jury are excessive or not does not present a question of law. If no improper testimony affecting the subject of damages has been admitted, and the court has given to the jury proper instruction to guide them in reaching a conclusion, the amount of the damages awarded is beyond the reach of a writ of error.” Hunn v. Railroad (1889), 78 Mich. 513.
In New Hampshire we find the subject thus treated:
“To justify the setting aside of a verdict because of excessive damages, it should appear that they were so exorbitant as to warrant the belief that the jury must have been influenced by partiality, passion or *251prejudice, or misled by some mistaken view of the merits of the case. Sedgwick on Damages, 601; Belknap v. Railroad, 49 N. H. 358, 370-375. But neither this objection, nor the further objection that the verdict was against the evidence, presents any question of law. Such questions of fact are to be determined at the trial term.” Hovey v. Brown (1879), 59 N. H. 114, followed as settled law in Merrill v. Perkins (1881), 61 N. H. 262, and in Clark v. Manchester (1887), 64 N. H. 471.
[Nevertheless, the Belknap case, fr>m the forty-ninth report of that state, appears as a citation in the prevailing opinion here as an authority for a review (on appeal) of that question.]
In New York, in Gale v. Railroad (1879), 76 N. Y. 594, “it was claimed that the 'damages awarded were excessive. The court stated their opinion to be that the claim was well founded, but that they had no jurisdiction to reverse upon that ground.”
To the same purport are Metcalf v. Baker (1874), 57 N. Y. 662, and Link v. Sheldon (1892), 136 N. Y. 5 (32 N. E. Rep. 696.)
This is the view in Oregon:
“Where the verdict of a jury is excessive,-it is the duty of the nisiprius court to set it aside, but its refusal to do so can not be reviewed by this court. Nothing but questions of law appearing upon the transcript can be reviewed here. The verdict herein may have been much larger than this court would have allowed under the evidence in the ease, or in view of the facts found by the jury. Still we have no right to set it aside, or reverse or modify the judgment entered thereon. The jury áre judges of the facts, and however widely our view might disagree with theirs, matters nothing. We have no right to invade their province, however sanguine we may be that they have committed error.” Nelson v. *252Oregon, etc., R’y Co. (1886), 13 Ore. 141, followed in Kumli v. Railroad (1892), 21 Ore. 505.
In Pennsylvania the settled doctrine, governing the action of the supreme court, has been lately stated very tersely, in an action for personal injuries, thus: “It is enough to say that the only remedy for an excessive verdict is a motion for a new trial, and that the refusal of such trial is not assignable as error.” Vallo v. Express Co. (1892), 147 Pa. St. 404.
In South Carolina, under a constitution conferring jurisdiction on the supreme court, “for the correction of errors at law” (Const. (S. C.) 1868, art. 4, sec. 4), it is held that the subject of excessive damages for personal injury “can not be reviewed” by the supreme court. Steele v. Railroad (1879), 11 S. C. 589; Dobson v. Cothran (1891), 34 S. C. 518.
In all the jurisdictions from which the above cases have been cited, excessive damages in actions of this sort are held to belong to the domain of fact.
3. In Missouri the trial courts have been invested with the power to review such questions, upon motion after verdict. They have the power to set aside the verdict if it is against the evidence, or the weight of evidence.
The power of the trial judge to revise a verdict upon the facts, in respect of its ainount, is of modern growth. The rule of the old English law was that “in actions founded upon torts, the jury are the sole judges of the damages, and therefore in such cases the court will not grant a new trial on account of the damages bejng trifling or excessive.” Buller’s Nisi Prius [7 Ed.], *p. 327.
The rule is different now in England by virtue of parliamentary legislation, to be noted later in this opinion.
But, in this state, the trial courts have the *253undoubted power, and it is often their duty, to vacate findings of damages for personal injuries, when those findings, in the opinion of the court upon the facts, appear so excessive as to indicate that prejudice or other improper motive .of the jury entered into the result. Compare Whipple v. Cumberland, etc., Co. (1843), 2 Story, 661; Porter v. Railroad (1879), 71 Mo. 83.
But if the verdict is merely excessive, that is to say, too great, under the evidence, the trial court in the exercise of its right to review on the weight and sufficiency of evidence may cut it down (if a remittitmr by the prevailing party be entered) to a sum which will accord with the evidence on that point.
The amount of a verdict may sometimes form part of an issue of law; for example, in some actions on contract (Pratt v. Blakey (1838), 5 Mo. 205; Hoyt v. Reed (1852), 16 Mo. 294), and in other instances notin view now. Compare Logan v. Small (1869), 43 Mo. 254; Todd v. Boone Co. (1844), 8 Mo. 431; Attwood v. Gillespie (1836), 4 Mo. 423.
In such cases' the supreme court on appeal (no less than the trial court) may apply the proper corrective, by remittitur or otherwise, which the error of law disclosed may require. Such eases are no authority for reviewing excessive damages here, in a case like that at bar.
Where the jury have been correctly instructed on the measure of damages, in a case disclosing a substantial personal injury, the ascertainment of a pecuniary equivalent for the resulting pain and physical disability, is not a question of law at all. 16 Am. and Eng. Encyclopaedia of Law, p. 582. It involves the decision of a question of fact only, and as such it falls outside the jurisdiction of this court, just as do questions upon the weight of evidence.
*254Since the adoption of the constitution of 1875, the supreme court, in a few instances, has assumed the power to cut down verdicts in actions for personal injuries. Waldhier v. Railroad (1885), 87 Mo. 37; Furnish v. Railroad (1891), 102 Mo. 438. But in neither of those cases was the constitutional objection to such action met, or discussed, or, apparently, considered. In the latter of those decisions the court was not united; and neither of them can, in my opinion, be accepted as having the force of an amendment to the constitution.
„In Smith v. Wabash, etc., Co. (1887),- 92 Mo. 359, the plaintiff remitted a part of his recovery, when its amount was challenged as excessive; but the official report does not show that the supreme court forced the remittitur, or considered .its power to force a remittitur..
If law is to be administered with a due regard to the principles which give it life, this court should either review all questions of fact or none, in actions at law. If it has power under the constitution to act on a question of fact in respect of damages, which the judges here deem excessive1, the court should also review the facts in all eases; and thus give all litigants alike the benefit of that reviewing power.
4. In this connection it is also interesting to observe that the majority of the court only claim the power to cut down the verdict by remittitur. They expressly disclaim the right to require an “additur”— or increase of damages by stipulation of the defendant, in event, perchance, a verdict for totally inadequate damages should be rendered for some plaintiff. In such a contingency, the plaintiff can not have the benefit derived from considering ‘'other verdicts in this class of cases,” which, it is said, may be looked at to *255ascertain any excess in the verdict. Yet one of the decisions, invoked to support the ruling in favor of compelling a remittitur (Belt v. Lawes (1884), 12 Q. B. Div. 356), also intimates, very plainly, that the same principle might be applied to increase the damages.
If a court has power to act upon the facts, it may require a finding of damages to be reduced by presenting the alternative of a new trial.
But the consent of the party remitting is essential to such a result. With a like stipulation for larger damages, there is no sound reason why judgment therefor may not be given when the plaintiff has been awarded an insufficient amount by the jury.
The basis for the judgment in each instance is the consent of the party against whom the order of the court operates.
And so we find that the principle of “additur,” no less than of remittitur, has been approved by many courts. Weeding v. Mason (1857), 2 C. B. N. S. 382; Carr v. Miner (1866), 42 Ill. 179; James v. Morey (1867), 44 Ill. 352; West v. Railroad (1882), 56 Wis. 318; Caldwell v. Railroad (1889), 41 La. Ann. 624.
The right to act upon verdicts in this, manner, however, is, generally, but an incident to the right to review them on the facts, as already stated.
.5. The idea that this court may properly sit as a sort of board of equalization of damages in actions for personal injuries, because, as the learned chief justice says, it “is constantly reviewing verdicts in this class of cases, and is in a position to be able to judge when a verdict is so far beyond those usually allowed in like cases as to be excessive,” has certainly the merit of originality.
To give that idea practical form, a table might be prepared, based on judicial experience, showing the *256proper limits of damages “usually allowed” for the loss of a hand, foot, leg, etc., and all combinations of such injuries, so that a plaintiff in such a case might know, in advance of an appeal, how much of the verdict of a jury to cut off, in order to save the costs of an appeal.
Such a table would, sometimes, at least, give a hint to interested parties of what verdict they might expect in the court of last resort. Without some such guide, the. finding there, until announced, would be quite as uncertain, as that of any other group of fair and sensible men to whom such an issue might be submitted.
Findings on such issues of fact are liable to take a wide range at the hands of different sets of triers, whether judges or jurors..
The learned chief justice has cited in his opinion a late English case which furnishes a fine illustration of that truth. Belt v. Lawes (1884), 12 Q. B. Div. 356.
In that, case the jury found for the plaintiff for 5,000 pounds sterling (about $25,000) in an action for libel. In the divisional court, a majority of the judges required plaintiff to reduce the recovery to 500 pounds (about $2,500); but defendant appealed again, and in the court of appeal, the judges held that the original verdict was not too great, and gave judgment accordingly for the 5,000 pounds.
The decision is an instructive object lesson of the variety of opinions prevailing on questions of this kind, even among judges of great experience.
6. In testing the strength of the precedents cited to uphold the result reached on the present appeal, it should be remarked that the English case, last above mentioned, was determined under the procedure established by the Judicature Act, which made the trial court that first heard that case, and the court of appeal which reviewed it, merely different branches of *257the same “supreme court of judicature.” As parts-of the same court, the court of appeal and divisional courts are invested by the law with power to act upon the verdict in the trial court, in the matter of amount. (Sup. Ct. Judicature Act, 1875, Pub. Gren. Stats. 1875, pp. 830, 831, 1st schedule, order 58, secs. 2, 5, 11.) Webster v. Freideberg (1886), 17 Q. B. Div. 736; Railroad v. Wright (1886), 11 App. Cas. 152. Thus, for example, in Phillips v. London, etc., R’y Co. (1879), 5 Q. B. Div. 78, the Queen’s Bench division granted a new trial to a plaintiff who had had a verdict for seven thousand pounds (about $35,000), for personal injuries sustained in a collision; and that ruling was approved, in the court of appeal, on the sole ground that the damages were'inadequate.
The decision in Belt v. Lawes, 12 Q. B. Div. 356, can not, therefore, be regarded as any authority what-, ever, upon the right to review excessive damages in appellate courts, organized under our constitution and laws.
In England, prior to the Judicature Act, in Britton v. South Wales R’y Co. (1858), 27 L. J., Exch., N. S. 355, the plaintiff having had a verdict for £2,000 sterling before Willes, J., and a jury at nisiprms, the court of exchequer (Pollock, C. B., Martin, B., Bramwell, B., and Watson, B.) declared: “We can not take the matter of damages out of the hands of the jury when the judge is not dissatisfied with their finding. It is impossible to measure the damages in such cases, and we can not substitute ourselves for both judge and jury.”
No other point was made, and the foregoing lines embrace the whole opinion in that case.
Nor is the decision cited from 47th Barbour any authority on the subject in hand, for, by the law of' New York then in force, the supreme court (in which *258the decision was rendered) had power to review the facts, and to reverse judgments on the weight of evidence. Macy v. Wheeler (1864), 30 N. Y. 237; Hoyt v. Thompson’s Ex’r (1859), 19 N. Y. 211.
The citation of the case in 47th Barbour, on appeal to the court of appeals (48 N. Y. 655), merely shows an affirmance of the former decision; but it has no bearing on the power to review the subject of excessive damages in a court having jurisdiction of errors of law only. That topic is abundantly treated in other New-York cases, already cited in this opinion.
In Louisiana, from which another citation appears in the opinion of the learned chief justice, the supreme court has jurisdiction, in damage suits, to pass on the facts as well as law, and hence may, of course, enforce a remittitur of damages or an aclditur, as the facts may appear to the court to demand; Donnell v. Sandford (1856), 11 La. Ann. 645; Caldwell v. Railroad (1889), 41 La. Ann. 624.
The value of the New Hampshire decision, mentioned as authority on the point of discussion., has been already indicated by the quotation from the later case in that state.
The remarks quoted from the Wisconsin ease should be read along with a later decision in the same state wherein the court, in declining to set aside a verdict for excess, remarked: “The rule firmly established in this court by numerous adjudications forbids any interference with the verdict for alleged excessiveness of damages.” Hinton v. Railroad (1886), 65 Wis. 323, at p. 341.
But whatever be the value of those decisions in the states where they were rendered, the real point here is, what is the meaning of our own constitution and laws?
7. It may be thought by some that the interests of justice would be promoted by confiding to the *259supreme and appellate courts the power to review the facts supporting every judgment, whether legal or equitable in nature. But that suggestion furnishes no valid reason for the assumption of such a power. Until it is confided to the court by the people, we should not reach out and seize it because we have been intrusted with the mighty power of construing the organic law.
A court should always be an exemplar of willing obedience to law. Its first duty should be to uphold the constitution. It should be no less ready to recognize the limitations on its own authority than to enforce the restraints of law upon others.
In Missouri, the trial courts are the final reviewing authorities on disputed issues of fact in law eases, and have been for many years.
After long experience with them, the people, in their latest constitution, have confirmed and continued them in that trust. The responsibility for that part of the administration of justice rests on them, and not upon this court.
In my opinion the verdict under review can not lawfully be disturbed here on account of its amount; and the majority of this court, be it said with the greatest respect, have no constitutional warrant for the order which has compelled the plaintiff to give up a large part of the damages adjudged to him by the jury and the trial court.
The majority have taken this course without even discussing the question whether, in so doing, the plaintiff’s right to a trial by jury has been violated.
But such a question of constitutional right can not thus be disposed of, without my earnest but respectful protest.
Hence my dissent is entered to the judgment announced by the majority of my brethren.