— In Gurley v. Railroad, 104 Mo. 233, speaking in behalf of division number two of this court, as then constituted, I said: “One other point only remains to be noticed. If plaintiff is entitled to recover at all, the verdict herein is excessive. It is in evidence «that no bones were broken, no muscles destroyed. Plaintiff, was able in eight or nine months to resume his work as a commercial traveler. We are asked by counsel to make the proper deduction, and they will remit. We are aware that this court has in cases heretofore indicated how much should be remitted; but, speaking for ourselves, we think that, whenever the verdict does not, upon its face, appear to be result of passion or prejudice it is wholly within the province of the jury; but when it does so appear, then it ought to be set aside. We have no scales by which we can determine what portion is just, and the result of reason, based upon the evidence, and what part is poisoned with prejudice and passion. We do not think it within our province to assess the damages. When we set aside any part of the verdict, we destroy its integrity, and we have no right to set ourselves up as triers of facts, and render another and different verdict. We think the only logical course in such cases is to let the verdict stand or set it aside as an entirety.”' 3 Graham and Waterman on New Trials, p. 1211.
These observations of mine are now disapproved. As the views I then expressed were the result of much consideration and not a mere passing theory, I trust I will be pardoned for not yielding them without giving, to some extent, the reasons which actuated me when I wrote that opinion. I dislike to appear tenacious- of my own opinions when they conflict with those whose greater experience and much greater ability and learning command so much more respect, but I wish to dissent in a respectful way from their views in this case. *261When I wrote the opinion in the Gurley case, I cited no authority and did not enter into any discussion of the principle announced in regard to a remittitur.-
Of course, what I said then was with reference to that and similar cases, and not to that class of cases where the law fixes the measure of damages which is alike obligatory upon court and jury, and when the court requires the verdict to conform to that, no suitor can complain.
But when the damages are unliquidated, and there is no legal measure of damages, I still maintain that it is a question for the jury, and the court, even a nisi prius court ,ought not to interfere, unless the verdict is the result of passion, prejudice or corruption, or evident mistake. In 1 Sutherland on Damages [2 Ed.], p. 947, the author says: •
“It is the peculiar province of the jury to decide such eases under appropriate instructions from the court; and the law does not recognize in the latter the power to substitute its own judgment for that of the jury.”
In Goets v. Ambs, 22 Mo. 170, the verdict was for $2,000 for an assault and battery and this court on appeal set it aside because it was excessive. Upon a second trial, the verdict was for $3,000, and on a second appeal (27 Mo. 28) it was again urged the verdict was excessive. Judge Richardson, speaking for the court said: “The general rule on this subject is well stated by Mr. Sedgwick in his work on Damages (p. -466) ‘That, although the court are entirely satisfied that the damages are excessive and .altogether beyond compensation for the actual loss sustained, they will not, on motion for a new trial, interfere with the finding, unless the verdict is so extravagant as to bear evident marks of prejudice, passion or corruption.’ ”
The learned author was evidently speaking of a nisi *262prius court, and, if that court, with its exceptional advantages for seeing and hearing the witnesses, was restrained by this rigid rule, why should an appellate court without those opportunities act upon less.
In Kennedy v. Railroad, 36 Mo. 351, Judge Wagner said: “The ground urged for 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.”
In Graham v. Railroad, 66 Mo. 536, Judge Norton, for the whole court, said: “It is claimed the damages are excessive.” After quoting the remark from Kennedy v. Railroad, supra, he said: “In the case before us, plaintiff’s right to recover damages was clearly established, and it does not appear to us that they are so flagrantly excessive or that the sum assessed is so disproportioned to the injury as to bear marks of passion, prejudice or corruption on the part of the jury, and, because we can not say this, the judgment can not be disturbed on the ground of excessive damages.”
Smith v. Railroad, 92 Mo. 359, was placed squarely on the authority of Miller v. Hardin, 64 Mo. 545. No reference was made to the Waldhier case. Miller v. Hardin was an action of ejectment and the jury assessed no damages, but the circuit court, in rendering judgment, entered it up for $105 damages. The plaintiff discovered this and asked to remit all of said damages, and it was permitted, but neither of those cases meets the practice to which I am objecting, namely, the enforced remittitur, or the alternative of a reversal. My position is that our jurisdiction in these cases is *263appellate and that we are not authorized to assess the damages in a ease like this, and that we are utterly without the means to properly fix them.
As an original proposition, I recognize the force and logic of the position that, as an appellate tribunal, we have no right to pass upon any question of fact in an appeal from a law case, but this court has asserted this jurisdiction in similar cases, since Lacky v. Lane, 7 Mo. 220, and McAfee v. Ryan, 11 Mo. 364, under the constitution of 1820, and the people adopted the present constitution.with our construction upon if; but I am unwilling to go further than to say that a verdict may be reversed when, upon the record, it appears to be the result of passion, prejudice, corruption or evident mistake.
The rule now- announced by our learned chief justice and adopted by the court, in my opinion, goes further than any court in the country, and further, in my opinion, than warranted by the constitution of this state, or the great weight of decisions prior to the Walclhier case, justifies.
In Worster v. Canal Bridge, 16 Pick. 547, the supreme court of Massachusetts said: “In all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury and not the opinion of the court is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.”
In the eighth edition of Sedgwick on Damages, vol. 3, sec. 1322, it is said, “the usual practice upon setting a verdict aside because it is excessive, is to order a new trial-,” but in some jurisdictions the remittitur is permitted.
*264In Coleman v. Southwick, 9 Johns. 45, Chief Justice Kent said: “The damages * * * must be so excessive as to strike» mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court can not undertake to draw the line; for they have no standard by which to ascertain the excess.”
In Price v. Severn, 7 Bing. 316, Chief Justice Tindal said: “I am as little disposed as any man to interfere with the province of a jury, and I should not be induced to send a case down again for excessive damages, except where those damages are enormous and disproportionate. I consider them such in this case. * * * The case, therefore,' must go before another jury.”
In Whipple v. Cumberland Manufacturing Company, 2 Story, 670-671, Judge Story said: “In no case will the court ask itself, whether, if it had been substituted in the stead of the jury, it would have given precisely the same damages; but the court will simply consider, whether the verdict is fair and reasonable, and in the exercise of sound discretion, under all the circumstances of the case; and it will be deemed so,-unless the verdict is so excessive or outrageous, with reference to those circumstances, as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices or their perverse disregard of justice to mislead them.”
In Blunt v. Little, 3 Mass. 102, the same learned judge, while he permitted a remittitur, said, in so doing: “I have the greatest hesitation in interfering with the verdict, and in so doing, I believe that I go to the very limits of the law.”
*265I could add a volume of similar, expressions from the opinions of judges whose names challenge our respect, but this will suffice to show that I was not without authority, when I said “that whenever the verdict does not, upon its face, appear to be the result of passion or prejudice, it is wholly within the province of the jury.”
I did not then, nor do I now, say a court may not set aside a verdict, if it does appear to be the result of passion, prejudice or evident mistake or corruption, but it is only when it does so appear, that the court can interfere. My proposition was, that this court, under our constitution, had no right to substitute its verdict for that of a jury.
The constitution, section 28, article 2, declares, “the right of trial, by jury, as heretofore enjoyed, shall remain inviolate.” Whatever may be the opinion of lawyers and publicists upon the propriety of retaining the jury system, it is clear to me that it is the duty of this court to obey the constitution as it is.
If I understand the opinion of the majority of the court, it does not announce that a verdict which is poisoned with the element of passion, prejudice or corruption, can be cured by a remittitiir, either in a trial or appellate court. If it does, then I think it altogether indefensible. Whenever it is conceded that passion or prejudice enters into the verdict, then no part of it ought to stand, for the palpable reason that it permeates and vitiates the whole' verdict. The court can not say that, but for such undue feeling, any verdict at all would have been given against the defendant.
As said by the author in Sutherland on Damages, (2 Ed., vol. 1, pp. 951, 952, sec. 460) “there is an apparent departure from sound principle in this practice. The court concludes that the jury were influenced by passion or prejudice, or both, because *266they fotmd such excessive damages; and yet allow their finding, covering the major propositions of the case upon which damages are consequent, to stand. Why should a verdict be in part retained if the jury were really influenced by passion or prejudice? Where their estimate of damages is rejected and another substituted, is the latter a verdict?” Koelts v. Black-man, 46 Mo. 320; Loeiventhal v. Strong, 90 111. 74; Railroad v. Gone, 37 Kan. 578; 3 Sedgwick on Damages [8 Ed.], sec. 1322.
• It seems too clear that the right to a jury trial presupposes, always, an impartial jury, and it must follow that a jury actuated by passion, prejudice or corruption is not such as is guaranteed by our charter.
The pith of the argument of my learned brother who wrote the opinion in this case, is that a verdict may be excessive, and yet not influenced by prejudice or passion. But if not influenced by prejudice or passion, how are we to account for this flagrant excess, except upon the other ground, of obvious mistake of duty. Why do we say it is excessive? It is not because it is so clearly unreasonable and unjust as to shock our sense of right and not such a verdict as just and impar-' tial jurors ought to have returned.
But, taking the view that the verdict is not necessarily the result of passion or prejudice, this brings us to the proposition, how is this excessive verdict to be cured? By the appellate court which sees only the cold record, a body that has no opportunity of seeing the witnesses, or observing their manner, or by a new trial before another jury? How is this court to determine how much is just and how much unjust? The only answer I have seen is that contained in the opinion of the majority, viz: that “this court is constantly reversing these verdicts and it is in position to *267know when a verdict in a given case is beyond that usually alloived in such cases and the defendant is entitled to the benefit of that knowledge.” In other words I understand from this we are to strike a u general average11 in these cases.
I submit, first, we have no right under our constitution to do this. It is the province of the jury in each case to assess the damages, and not the court.
• Second. This practice, to be logical, will drive us to the other extreme of “increscitur.” If we are to cut down all the verdicts that appear to us to be above the .general average, are we not bound to increase all those below the average to the usual standards Third. But I maintain that the common law courts have never attempted, before, to average up verdicts. Chief Juctice Mansfield, in Hewlett v. Cruchley, 5 Taunton 280-281, said: “I always have felt it, that it is'extremely difficult to interfere and say when damages are too large.” “You may take twenty juries, and every one of them will differ, from 2000 l down to 200 l.1'1 But he did not suggest that it was his function to strike the average for them. Nor will we be any better able than the jury to weigh the facts of each case and determine what is right. In the very nature of things there can be no average. The facts and circumstance of each case must determine it. What would be a large verdict for one person, would be very inadequate for another.
In Nudd v. Wells, 11 Wis. 415, the court said: “The practice of remitting where the illegal part is clearly distinguishable from the rest, and may be ascertained by the court without ass%ming the functions of the jury and substituting its judgment for theirs, is well settled. * * * But it ought not to be carried so far as to allow the court, when a jury has obviously mistaken the law, or the evidence, and rendered a ver*268diet which ought not to stand, to substitute its own judgment for theirs, and after determining upon the evidence what amount ought to be allowed, allow the plaintiff to remit the excess, and then refuse a new trial. There are authorities that would sustain even this, as Collins v. Railroad Company, 12 Barb. 492; and Clapp v. Railroad Company, 19 Barb. 461. But we are unable to see how such a practice can be sustained, in such cases as those were, without doing the very thing which they professed not to do; that is, allow the court to substitute its own verdict for a wrong verdict of the jury, and on the plaintiff’s accepting that, refusing a new trial.”
In Vinalx v. Core, 18 W. Va. 1, that court fully indorsed the above view of the supreme court of Wisconsin, and reasserted the same doctrine in Unfried v. Railroad, 34 W. Va. 260; Vaulx v. Herman, 8 Lea (Tenn.) 683; Thomas v. Womack, 13 Tex. 580.
In Railroad v. Hall, 53 Ark. 7, the supreme court of Arkansas said: “In Blunt v. Little, 3 Mason, 102, Judge Story says that a verdict for damages should not lightly be disturbed on the ground of excessiveness, and that, in permitting a remittitur where such excessiveness was the only error, he felt that he went to the limit of the law. And so we think. The case of Railway v. Barker, 39 Ark. 491, is certainly ‘the limit of the law.’ In this cause the jury had properly before them the plaintiff’s expenses, his loss of time, his diminished capacity for labor, and his pain, anguish and suffering. The difficulties which would beset a court in determining the justness or excessiveness of a verdict based upon these premises alone would not be inconsiderable. But superadd the element of punitive damages erroneously allowed, and the process by which' the court is to dissect the verdict, eliminate the error, eliminate the excess of compensation and settle upon the exact sum which plaintiff’s case entitles, him to have, *269‘passeth all understanding.’ To attempt it, we think, would be a violation of the spirit of the constitution, which intends that every litigant shall have a trial of his cause before an impartial jury upon proper declarations of the law.”
This is not a new question; it has been discussed in many of the states. The opinion of Judge Black contains a reference to those states where a remittitur has been allowed as a condition for refusing a new trial for excessive damages.
In Railroad v. Harper, 70 Georgia, 119, the eases were reviewed and the conclusion was reached that the trial court even had no right to impose such a. condition as a reason for refusing a new trial.
It was well said by Judge Hall, that the power to control did not include the power to find a verdict. Said he: “Like the executive veto, it arrests, but does not, by its exercise, bestow the power to enact.” It is a familiar principle that a court or other constituted authority may not do that, indirectly, which it is forbidden to do directly.
No amount of argument can disguise the fact that, if we assume to set aside verdicts in this manner and substitute our findings in lieu of the jury’s, we have taken to ourselves the prerogative, that was confided, by the constitution and the statutes, to the jury. Nor am I able to see the consistency in setting aside the verdict of a jury, dictating a different finding, and yet hesitating when asked to instruct a jury as to the elements of damages because we would thereby be invading their province.
At one time ! had thought I would not dissent in this case, but yield my assent because of the former decision of this court in Furnish v. Railroad, but when I consider that that decision did not constitute a rule of property and no vested right would be disturbed by *270not adhering to it, and because I am convinced that, as judges, we ought not to assume the functions of a jury, and that it has from the organization of the state been considered the peculiar right of a jury to fix the amount of damages in a tort like this, I deem it my duty to say so now. It has been iterated and reiterated numberless times that “no measure can be prescribed in such cases except the enlightened consciences of impartial jurors.” Have we concluded we will substitute the enlightened conscience of the judges of- the appellate courts in lieu of that of the jury? It seems so to me, and for that reason I dissent from the practice.
It was a maxim of the common law, “that, with respect to the question of law, the jury must not respond, but only the judges, and as to questions of fact, the judges must not respond,'but only the jury.” Broom’s Legal Maxims, 80; Coke on Littleton, 295b.
In Rex v. Poole, Lee’s Cases, temp. Hardwicke, 28, it was said by Lord Hardwicke: “It is of the greatest consequence to the law of England and to the subr ject that the powers of the judge and jury are kept distinct; that the judge determines the law, and the jury the fact; and if ever they come to be confounded it will prove the. confusion and destruction of the law of England.” Sherwood, J., concurs in these views.