(concurring in part and dissenting in part) — I concur with the majority except for its disposition of the issue of damages. I disagree with the majority’s reduction of damages awarded the defendant from $15,000 to $7,500 or in the alternative granting the plaintiff a new trial. The sole reason given is that “the amount shocks our sense of justice and sound judgment.”
The test to be applied for making such a determination is set forth in Kramer v. Portland-Seattle Auto Freight, 43 Wn.2d 386, 261 P.2d 692 (1953), cited in Malstrom v. Kalland, 62 Wn.2d 732, 384 P.2d 613 (1963):
“On the other hand, the balancing factor is the conscience of the appellate court, when there is an affirmative showing that passion and prejudice played no part in the jury’s determination. Is the amount flagrantly outrageous and extravagant? Is it unjustified in the light of the evidence? Does it disclose circumstances foreign to proper jury deliberations? If it is and does, then it can be said to shock the sense of justice and sound judgment, and the verdict of the jury is excessive.”
Applying this test to the trial judge as the fact finder, I find nothing in the record to shock my “sense of justice and sound judgment.” To be called a “thief” who “robs openly from a creative spirit .... in his path of plagiarism” by a man with the standing in the field of sculpturing as that of James H. Fitzgerald is devastating to a novitiate *932attempting to establish a professional reputation as a sculptor.
In my opinion, the award of $15,000 for damages resulting to the defendant from these libelous and defamatory statements was within the range of the evidence. The judgment of the trial court should be affirmed without modification.
Finley, C. J., Hill, J., and Langenbach, J. Pro Tern., concur with Hunter, J.
July 5, 1967. Petition for rehearing denied.