I concur in the opinion of Walker, J., and wish to recall what was said by me when the cause was -here upon the first appeal. What I then wrote was based upon a misunderstanding of the facts of this case, and a partial misconception of the law applicable to such facts.
WOODSON, J.Before the plaintiff would be entitled to a recovery in this case the jury were required to find that the defendant was guilty of the negligence charged in the petition, and that the plaintiff was not guilty of the contributory negligence stated in the answer.
Both of those facts were sharply presented by the pleadings, and there was much evidence introduced by the respective parties tending to prove each of those issues. _ Not only that, those facts should have been established to the reasonable satisfaction of the jury, solely by the evidence introduced — unbiased by hatred and ill-will, or passion and prejudice.
When I read this record as I did the record of the previous appeal, I became satisfied that the jury here, as there, was not solely governed by the'evidence in the case, but largely by their prejudice and passion *512against the defendant. This is clearly manifested by the amount of the verdict ($50,000) and the readiness with which counsel consented to a ' remittitur of $25,000 — one-half of the present verdict, and the full amount of the former.
I repeat here, that where'the facts of a case are not conceded or agreed to and where the amount of the verdict, as here, so glaringly discloses the passion and prejudice of the jury against the defendant, we must presume that the same passion and prejudice also unjustly and improperly influenced the jury in passing upon the merits of the case, as well as influ: enced them in fixing the amount of their verdict. In other words, that prejudice which caused the jury to improperly award the plaintiff three or four times as much as he was justly entitled to, if anything, did also in the very nature of man and things, improperly influence them in passing upon the merits of the case, namely, the question of the defendant’s negligence, and the contributory negligence of the plaintiff.
If counsel may be permitted to appeal to the baser elements of man, and thereby procure a verdict upon the merits of the case, as well as for an unjust amount, and then remit a portion of the latter, then by indirection the prejudice and passion of the jury and not its sense of right and justice, would be permitted to meet out right and justice to their fellow-man. And that too, with the sanction and approval of the courts of the land — the fountain-head of law and justice.
For one, I will never lend my sanction to such a monstrous proposition.
I had occasion to mention this matter in the case of Cook v. Globe Printing Co., 227 Mo. 471, l. c. 562; also in my dissenting opinion in this case when here on the former appeal, 244 Mo. 608, l. c. 662.
If counsel will persist in this unjust practice I see no other remedy but to reverse the judgment just so often as the record discloses that abuse of authority.
*513Counsel should remember that they are officers of the court and have a duty to perform for the State, just as the court has; both are equally interested in the orderly administration of the law,, which would be difficult to do without the hearty co-operation of court and counsel.
Of course I recognize that counsel, at times, in the heat and excitement of a trial says and does things which would not be said or done in calmer moments, yet where those things do occur to the injury to either party litigant, it then becomes the duty of the court to correct the injury by such action as may be necessary to accomplish that end; and in this particular case I believe justice will be best served by reversing the judgment and remanding the cause for another trial.
Now, I am not overly sensitive regarding large verdicts and judgments, provided they are commensurate with the injuries sustained. This is evidenced by the fact that the writer has heretofore written the opinions in three or more cases wherein the verdicts of the jury are the largest (if my memory correctly serves me) ever approved by this court.
In a court of justice, justice, right and equity should be judicially administered, not only as to the amount .involved, but also as to the merits of the case. The latter constitutes the foundation upon which the former is predicated; and if the foundation is founded upon sand then the fruits of the temple of justice must fall.
G-EAYES, J.Upon the questions discussed in the previous opinions of Judge Brown (244 Mo. 643-647) and myself (244 Mo. 616-641) in this case, the record now before us has not so changed the facts as to destroy the legal conclusions there reached.. Those opinions can be read as my dissent in this case, and *514the more curious can read the two records.
Fans, J., concurs in these views.PER CURIAM. — The attitude of the court on the foregoing opinion is defined by the votes of the respective judges thereto appended.
Since the opinion was written, the parties litigant have entered into and filed in this court a stipulation in the words following, to-wit:
“It is stipulated and agreed in the above case that judgment shall be rendered in the Supreme Court in favor of the plaintiff and against the defendant in the sum of ten thousand dollars, and that said judgment shall not draw interest until the first of January, 1915, and that the defendant shall have until on or before the first of January, 1915, to pay said judgment, and if the same is not paid on or before the first of January, 1915, said judgment shall draw interest at six per cent therefrom, and that none of the existing rights of the plaintiff against the sureties on the appeal bond of the defendant shall be affected by this stipulation or judgment.
“It is further understood that the defendant is to pay the costs in the trial court except the plaintiff’s witness fees, which are to be offset against the costs recovered by the defendant in this court in- the former .appeal.”
It is therefore ordered that the judgment of the trial court be affirmed and that the damages therein be assessed at the sum of ten thousand dollars on the conditions named in said stipulation.