OPINION ON MOTION FOR REHEARING.
GRAVES, J.— Upon the last day of our April term there was pending in this case a motion for rehearing „ and upon that motion I had prepared my views, to the effect that a rehearing should be granted for the reason that the principal opinion then on file decided the case upon a theory not involved in the case at all. In other words the opinion was written upon the theory that the case was under what-is now section 5425, Revised Statutes 1909, the penal section, when in truth and fact the case is under what are now sections 5426 and 5427, Revised Statutes 1909, the compensatory sections.
Discovering his error the writer of the principal ■opinion upon the last day of the term, presented a revised opinion changing the. theory of the opinion as first written, and I took time in which to reformulate my views of the case, and hence the motion for rehearing passed over for that purpose. In compliance with the leave granted me I submit the following:
' In the trial of the case nisi the humanitarian theory was abandoned by the plaintiff. That left in the petition the following:
“Plaintiff further states that as a result of the carelessness and negligence and unskilfulness of *648. . . the foreman in charge of said hand car, as aforesaid, she has been deprived of the support, comfort and society of her said husband, all to her damage in the sum'of ten thousand dollars, for which sum defendant- is liable to plaintiff by virtue of Secs. 2865 and 2866, of the Revised Statutes of the State of Missouri, of the revision of 1899, and by virtue of an amendment of the latter section by an act of the General Assembly in the year 1907 (Acts 1907, p. 252). ’ ’
The above sections are now Secs. 5426 and 5427, R. S. 1909. They authorized a recovery of compensatory damages only. They are not in any sense penal statutes, and have never been so construed.
Not only did plaintiff’s petition plant her cause upon the compensatory statutes, but such is the theory of her instructions. The material part of her principal instruction reads:
‘ ‘ The court instructs the jury that if they find for the plaintiff they will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of ten thousand dollars, having due regard to any mitigating circumstances offered in evidence and taking into consideration the age of the deceased, his capacity to labor and probable earnings.”
This instruction in under Sec. 5427, R. S. 1909, and not under the penal section, namely, Section 5425. Section 5427 reads:
“Sec. 5427. Damages accruing under the last preceding section shall be sued for and recovered by .the same party and in the same manner as provided in section 5425; and in every such action the jury may give such damages, not exceeding ten thousand dollars, as they deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.”
*649Under this section the plaintiff must show her «damages. On the other hand the defendant may show the mitigating circumstances, if any there he.
Further the action being one for compensatory •damages, it devolved upon plaintiff to fully show the damages sustained. She has not shown damages to the exorbitant sum'of $10',000. The excessiveness of the verdict was a ground in the motion for new trial. Such ground was well taken and the action of the trial court in granting a new trial can be sustained for this reason if for no other. We believe the instruction condemned by the trial court in its order granting a new trial was properly condemned. The instruction is .awkwardly worded, and to say the least-of it, is misleading.
The action of the trial court in granting a new trial stands upon a different basis from that of an appellate court: Such court has a wide discretion,' and such discretion should not be disturbed here, unless it has been grossly misused. Our brother Lamm, in McCarty v. Transit Co., 192 Mo. l. c. 401-2, has well stated the situation of the trial judge, thus:
‘£ Considering the ease from this point of view, it must not be lost sight of that a jury may not' give any verdict it pleases'. Its verdict is first subject to the trained judicial discretion of the trial judge, and his judicial discretion, so exercised upon the verdict, will not be interfered with on appeal except it be unmistakably unwisely exercised. [Bank v. Armstrong, 92 Mo. l. c. 279, et seq.; Bank v. Wood, 124 Mo. l. c. 76-7; Kuenzel v. Stevens, 155 Mo. l. c. 285; McCloskey v. Pulitzer Pub. Co., 163 Mo. l. c. 33, and cases cited.] The wise exercise of this judicial discretion on the part of •the circuit judge has always been encouraged by this court — a discretion exemplified by Justice Grier in his celebrated dictum that ‘it takes thirteen men in this court to steal a man’s farm; twelve in the box and one on the bench. ’
*650“The trial judge stands peculiarly close to the fountain-head of legal justice. He is the high priest presiding at the very altar of the temple. To him it is given to hear the intonation of the voice of a witness, to see his manner, his cast of countenance, • the glance of his eye, the behavior of the jury, their intelligence, their attention and the whole network of small incidents creating an atmosphere about a case and tending possibly to a perverted result or otherwise, none of which can be preserved in the bill of exceptions and sent here, and in him, therefore, should exist the courage to prevent a miscarriage of right. His viewpoint is entirely different from that of an appellate court. See the animated language of Wagneii, J., in Reid v. Insurance Co., 58 Mo. l. c. 429, et seq.”
In the earlier case of Schmidt v. Railroad, 149 Mo. 282, our present Chief Justice thus tersely spoke :“The trial judge holds in his hands more than any other tribune the power to shape the trials of cases to accomplish the ends of justice. One of the chief means at his disposal is the power to grant new trials and he ought to exercise it whenever in his judgment unfair advantage has been obtained at the expense of justice. ’ ’
So we say in this case: the trial judge was at the very seat of justice. The verdict in this case disturbed his idea of justice. He set it aside and it should so remain: It matters not that he may have assigned a wrong reason for his action if there be a good reason covered by the motion for a new trial.
We insist that the exceedingly high verdict in this case is not sustained by the evidence for the plaintiff. Under the statute (Sec. 5427, R. S. 1909) the damages assessed by the jury must be “with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating *651circumstances attending such wrongful act, neglect or default. ’ ’
No aggravating circumstances were shown by the plaintiff and hence the damages cannot be enhanced for that reason. The only thing upon which she can have damages is the earning .capacity of the deceased and probable length of his life. He was earning one dollar and twenty-five cents per day, and yet on this proof she has recovered the highest amount which can be recovered in a case under these statutes. Had her husband been earning ten dollars a day she could not have recovered one whit more than she did in this case. I do not endorse the idea seemingly announced by our learned brother that the widow of a mm with an earning capacity of $1.25 per day can or should recover under these statutes a sum equal to that which can or should be recovered by the widow of a man whose earning capacity was $Í0 per day. The statute does not mean that. It has a sliding scale of damages and was properly intended to cover all cases, but to cover them rightly and justly under the facts of each case. The greatest recovery allowable is ten thousand dollars. This includes the aggravated cases. When the Legislature fixed this sliding scale, and when it provided for aggravating circumstances as an element to enhance the damages, and when it further fixed the highest recoverable sum at ten thousand dollars, it was never intended that the widow of a man with the limited earning capacity of $1.25 per day should recover the full limit of the statute in a case without a single aggravating circumstance. The verdict in this case outrages the very statute under which it was recovered. To permit it to stand would be to make mockery of the law, and enter upon the records one more travesty upon justice."
As stated before, the exeessiveness of this verdict was properly urged in the motion for a new trial. It is vehemently urged here. The trial court has *652granted a new trial and excessiveness of this verdict is a good ground for that action of the trial court. What reason the learned trial judge assigned for his ruling is immaterial here, so long as there is one good ground in the motion for a new trial.
The motion for rehearing in this court should be sustained to the end that we may, upon another hearing, enter up a judgment sustaining the trial court in granting a new trial, nisi, and to the further end that upon such new trial below a right verdict in the case may be obtained, and not one bearing upon its face the evidence of poison and prejudice in the minds of the jury.
Wooclson and Ferriss, JJ., concur in these views.