specially concurring in Part II.
Although it appears that this case has taken on an unusual and certainly not unforeseeable turn, it cannot be said that Justice Johnson errs in his analysis. The district court in Sanchez I was given specific directions as to proceedings on remand. Justice Johnson sets those di*1071rections out verbatim, and he also repeats verbatim this Court’s instructions to be followed in passing on Rule 59(a)(5) and (6) motions for new trial. The trial court appears to have fairly well followed those instructions. If so, then seemingly it would ill-behoove this Court to find error for doing so.
When one reads and rereads the directions given to the district court, the overwhelming impression is that the district court was actually invited to find that he was shocked by the jury’s damage award, or that the award was unconscionable so as to give the appearance of having been given under the influence of passion or prejudice. Accordingly, the district court inserted the magic words into his previous written decision. As Justice Johnson correctly notes, thereby the district court “fulfilled the condition precedent established by this Court in Sanchez I for re-instituting the remittitur.”
Unfortunately, the language of those directions given in Sanchez I did not in the least intimate to the district court that there was also the alternative, i.e., to find whether he was not in fact, shocked by the award, or whether he did not find the award so unconscionable as to give the appearance of having been given under the influence of passion or prejudice.
Moreover, another fault in Sanchez I brought out vividly by Justice Johnson’s isolating of the two excerpts from Sanchez I set out in Part II of today’s opinion for the Court is the statement that, “If technically the verdict is supported by substantial, competent evidence and it still finds the verdict excessive, then it must rule whether in its opinion the jury appears to have acted under the influence of passion or prejudice.” I do not understand this particular use of the word “technically.” What I do understand is that where the district court finds a verdict supported by substantial and competent evidence, it can not find that it is excessive. A verdict is excessive when it is not supported by the evidence. But, where the supporting evidence is in place, there is no need nor reason to consider the possibility of passion or prejudice. As recently as just one month ago, Justice Bakes wrote that a “trial judge can grant an additur or remit-titur only by offering a new trial as an alternative, and then only if he determines that the disparity between his evaluation of damages and the jury’s award is sufficient to suggest that the jury’s evaluation of damages was the result of passion or prejudice.” Howes v. Fultz, 769 P.2d 558, 563 (Idaho 1989) (emphasis supplied). This was a misstatement of the law which until it is corrected will misguide the trial courts and the trial bar and do untold mischief.
Hoping to avoid this further confusion in the law, my dissenting opinion in Howes explained that:
Idaho case law does not require that the trial court in all instances must determine whether an excessive or inadequate verdict has resulted from a jury appearing to have acted under the influence of passion or prejudice. A trial court after going through the weighing process, and then the comparing process, will then make the determination of inadequacy or excessiveness, and accordingly rule on the motion for a new trial. That is the teaching of Checketts v. Bowman, supra [70 Idaho 463, 220 P.2d 682 (1950)], where passion and prejudice was given no consideration in awarding a new trial, and in fact, was specifically rejected. The trial court there held the verdict excessive. The Supreme Court agreed, and also unanimously decided by how much it was excessive.
Passion and/or prejudice was specifically ruled out by the trial court, and then on appeal was not in the Supreme Court’s equation. The rule in place at the time of Checketts was:
[Wjhere it appears that the damages are so large as to indicate the influence of passion and prejudice in the verdict a new trial will be granted. If it appears that the verdict is excessive but passion and prejudice are not indicated, the court will reduce the verdict to the amount supported by the evidence making its acceptance optional. *1072Summerfield v. Pringle, 65 Idaho 300, 144 P.2d 214 (1943).
Assuming that he read my Howes opinion, Justice Bakes did not see fit to change what he declared to be the law, and, why should he bother, when even more disappointing, no response was had from the two justices who had so readily joined his opinion. It is because of such indifference that the Idaho case law in many areas is less than clear. Accepting that my reading of the prior cases might have little influence, appended to my opinion was the trial court’s order granting the defendants a new trial in the Checketts case, which was taken from this Court’s original file. In that same file is other documentation showing that the district court specifically rejected a defendant's claim of passion and prejudice on the part of the jury. Nevertheless, with Justice Bakes declining to correct his misstatement of the law, the trial bench and bar now have that, too, to contend with over the years.
Anent the case at hand, Sanchez II, there is much in the excerpts from Sanchez I quoted by Justice Johnson that resemble Justice Bakes’ mistaken view of the law. This Sanchez case convinces me that compromise appellate decisions, like compromise jury verdicts, should be disfavored in Idaho jurisprudence.
Note should be carefully taken of the contents of Justice Huntley’s opinion in Sanchez I, 112 Idaho 609, 616, 733 P.2d 1234, 1241 (1987), where is found this all-important language:
[T]he trial court indicated that he found no fault with the jury to prompt his conditional order of new trial:
I was impressed with the jury, I think. I thought we had a very well selected jury. I thought they were a good cross-section of age, income, occupations, intelligence, certainly conscientious. I don’t think I could say I’ve had a finer jury in any case ....
[T]he trial court merely substituted its award amount, reached by way of a different method of calculation, for that of the jury. The trial court made no finding that the amount of the jury verdict ‘appeared to have been given under the influence of passion or prejudice.’
When Justice Huntley had made those correct observations, the issues on appeal should have been decided. To gain a majority opinion, however, there was a requirement of a third vote, and a firm third vote, had it been forthcoming at that point, would have brought this litigation to a conclusion, with the conditional order for a new trial being reversed, and directions given to reinstate the judgment on the verdict of the jury.
Where the district court specifically had not made a finding of passion or prejudice on the part of a jury, but in fact had commended it as he did, it was a huge mistake to reverse and remand for the express purpose of inviting the district court to make a finding that there was passion or prejudice influencing the jury, when in the first place the court had specifically not done so; rather the district court candidly benefited this Court with his views that the case was very well tried, that the jury’s verdict was understandable, that it did not shock him, that the court had never had a finer jury in any case, and that he would have computed the damage factors somewhat differently. (See computations set out in specially concurring opinion of Bistline, J., 112 Idaho 609, 625, 733 P.2d 1234, 1248.)
In retrospect now, two and one-half years later, there is seen in Justice Bakes’ dissenting opinion in Sanchez I the commendable caution that, “as written, the Court’s opinion will only confuse the bench and bar alike.” 112 Idaho at 625, 733 P.2d at 1248. I do not say that as expressing an agreement with his further view that Sanchez I should have been an affirmance of the district court’s conditional grant of a new trial. Far from that. Obviously Justice Huntley did not ever have a necessary third vote from Justice Bakes or from Justice Shepard (who joined the dissent of Justice Bakes), and needed the vote of Justice Donaldson, who was at the time perhaps suffering from the pangs of pride of *1073authorship of Quick v. Crane, wherein the attempt was made to improve upon Dinneen v. Finch. Again in the retrospective mode, it would have been far better to have looked away and affirmed the district court’s order in Sanchez I than to muddy the waters of the law by reversing with directions to the district court to reconsider —coupled with an outright invitation to find that this exceptionally fine jury’s award of damages appeared to have been tainted with passion and/or prejudice, notwithstanding the district court’s announced conclusions that the verdict was understandable, that the evidence supported the award, and, the amount of the verdict was not shocking.
In deeper retrospect, I find myself being brought ever closer to the philosophy of Justice Shepard to which I have been exposed for thirteen years. That philosophy, as I understand it, is based on a disenchantment with the thought that a trial judge in a case tried to a jury sits as a thirteenth juror armed with the power “to override the verdict of the other jurors if he conceives that justice has not been done.” DeShazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969). In the Checketts case, 70 Idaho 463, 220 P.2d 682 (1950), the district court granted a new trial on the grounds that $40,000 was excessive for the death of a nine-year old child who was struck and killed by a vehicle passing a stopped school bus from which the boy had alighted. The district court decision granting the defendants a new trial did not even pretend to indicate by how much that verdict was excessive — which is to say that the thirteenth juror failed to function as such, and was simply content to say “too much means try it again, Sam.” Thus the parents were being put to a succession of trials until a jury was found which would bring in a verdict more to the thirteenth juror’s satisfaction.
On appeal, the Idaho Supreme Court, undoubtedly being of the compassionate view that the parents should not be so tortured with such successive trials, took it upon itself to alleviate that burden by fulfilling the function of a thirteenth juror. This it did on a cold appellate record which it augmented by a simple remark noting that an intermediate California court in “Tyson v. Romey, 88 Cal.App.2d 752, 199 P.2d 721 in 1948 speculated that $18,500.00 may be the highest award assessed in this state for the death of a five year old child.” The court noted also that a review of collected cases in 25 C.J.S. showed that the highest award allowed to stand was $20,000, remanded with instructions to vacate the order granting a new trial to defendants and to enter a judgment on the verdict in the sum of $20,000, if the parents would timely consent thereto, but if not to proceed with a new trial as previously ordered. 70 Idaho at 467, 220 P.2d at 686. Here was indeed an outrageous application of the thirteenth jury doctrine. Here was an exercise of unjustifiable judicial intrusion into the jury function, with the court all in the same opinion reciting “We are mindful of the rule that the amount of damages is primarily for the jury to determine, and that its verdict will not be disturbed except where abuse of its discretion clearly appears.” As counsel for the Checketts pointed out in their fruitless petition for a rehearing, no previous Supreme Court in Idaho had ever interfered with a jury’s award of damages for the death of a child.
Checketts, 70 Idaho 463, 220 P.2d 682 (1950), was a case which should have been overruled at the first opportunity. Unfortunately it remained intact for twenty-two years. How much damage it caused cannot be known, as, having stare decisis prec-edential value, it undoubtedly was applied by the district courts in many instances where there was no appeal taken. In Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), the Checketts precedent was used to the detriment of plaintiff parents who saw the district court rule that a $71,-335.00 verdict was excessive and that there would be a new trial granted to the defendants unless the plaintiffs would consent to a remittitur of $32,000.00. Those plaintiffs did appeal. Justice Shepard wrote this Court’s unanimous opinion. Just as his leadership prevailed in Cheney v. Palos Verdes, 104 Idaho 897, 665 P.2d 661 (1983), and struck down the notorious companion *1074cases of Cox v. Stolworthy, 94 Idaho 683, 496 P.2d 682 (1972), and Jolley v. Puregro, Co., 94 Idaho 702, 496 P.2d 939 (1972), here the ill-starred Checketts case was overruled insofar as it stated anything contrary to Meissner, 94 Idaho at 566, 494 P.2d at 570. In particular, Justice Shepard justifiably placed a considerable reliance on Garrett v. Taylor, 69 Idaho 487, 210 P.2d 386 (1949), a case which preceded Checketts by a scant eight months. The Court’s makeup in both cases was the same, and the opinions in both cases were authored by the same justice. Garrett v. Taylor was cited in the brief of plaintiffs filed with the Court in Checketts. Notwithstanding all of the foregoing, there is no mention whatever in Checketts of Garrett v. Taylor, probably for the obvious reason that Garrett v. Taylor stood staunchly in the way which the Checketts court was determined to go—or at least the author so determined, and the others were indifferent or careless.
As Justice Shepard pointed out in his Meissner opinion, Checketts, had dictated the district court’s course of action, and Checketts was in need of reevaluation:
It is thus apparent that we must examine Checketts and determine if the reasoning and results thereof should be held valid and applicable to the case at bar. Defendants-respondents herein strongly urge that a limit on the amount which may be awarded for the death of a minor child in the State of Idaho has been set by Checketts and should be continued.
Meissner, 94 Idaho 563, 565, 494 P.2d 567, 570 (1972). In disavowing Checketts and its limitations on jury verdicts, especially where based on comparisons of verdicts in other jurisdictions, it was only needed to quote the Garrett case, the very case which was ignored in Checketts, ignored because it was directly contrary, as is readily observed:
‘A comparison of the facts of this case with the numerous other cases involving a challenge to the amount of the verdict would be of little assistance. Each case must rest upon its own particular facts and the sound and impartial discretion of the jury and the trial judge.’ 69 Idaho 487, 490, 210 P.2d 386, 388.
Meissner, 94 Idaho at 566, 494 P.2d at 571. Stare decisis is generally a good rule, but it should not place blinders on astute appellate judges who perceive that a prior case was not soundly structured. Justice Shepard was such an appellate judge.
Similarly, “law of the case” is as commendable a doctrine as stare decisis. For the judicial system to avoid chaos it is required that lower courts are not free to ignore the law of the case as it has been laid down by the appellate court.
Again, with the appellate court itself reviewing the same case on a different issue, there should be due regard for that which has been written before. However, unlike the situation where law of the case absolutely governs further proceedings in district court, as observed in the Sanchez case now at bar, an appellate court is not quite so fettered from correcting errors it has committed or directed.
The law of the case doctrine was recently given a thorough analysis and review by the Supreme Court of California in Searle v. Allstate Life Ins. Co., 38 Cal.3d 425, 212 Cal.Rptr. 466, 696 P.2d 1308 (1985), and that review is worthy of being disseminated. In sum, the primary premise to be kept in mind is that just as stare decisis is not an inexorable command, so, too, the doctrine of law of the case is not inflexible.
The rule of ‘law of the case’ generally precludes multiple appellate review of the same issue in a single case. The doctrine applies to this court even though the previous appeal was before a Court of Appeal. In United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 284 P. 922, this court stated: ‘Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case.’ (Id. at p. 712, 284 P. 922; see also Davies v. Krasna (1975) 14 Cal.3d *1075502, at p. 507, fn. 4, 121 Cal.Rptr. 705, 535 P.2d 1161.) As we stated in People v. Shuey (1975) 13 Cal.3d 835, 842, 120 Cal.Rptr. 83, 533 P.2d 211, ‘[t]he doctrine, as the name implies, is exclusively concerned with issues of law and not fact.’
As noted by this court, however, the ‘doctrine of law of the case ... is not inflexible.’ (Davies v. Krasna, supra, 14 Cal.3d, at p. 507, fn. 5, 121 Cal.Rptr. 705, 535 P.2d 1161.) In England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 97 P.2d 813, a third appeal was taken to this court and we departed from the rule of law of the case noting that ‘a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. ’ (Id., at p. 795, 97 P.2d 813.) But ‘[i]n the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision.’ (Gore v. Bingaman (1942) 20 Cal.2d 118, 123, 124 P.2d 17.) Though we have recognized that the rule will be disregarded when necessary to avoid an ‘unjust decision’ (e.g., DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865,) that exception must rest on ‘a' manifest misapplication of existing principles resulting in substantial injustice’ and not on mere disagreement with the prior appellate determination. (People v. Shuey, supra, 13 Cal.3d 835, 846, 120 Cal.Rptr. 83, 533 P.2d 211.)
Here, however, there is another reason, apart from the degree of injustice that might result from our now following Searle I, for our not regarding ourselves bound by that decision as the law of the case. The primary purpose served by the law-of-the-case rule is one of judicial economy. Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding. (People v. Shuey, supra, 13 Cal.3d 835, 840-841, 120 Cal.Rptr. 83, 533 P.2d 211; People v. Durbin (1966) 64 Cal.2d 474, 477, 50 Cal.Rptr. 657, 413 P.2d 433; Gore v. Bingaman, supra, 20 Cal.2d 118, 123, 124 P.2d 17.) That reason for the rule is inoperative when the court hearing the subsequent appeal determines that there should be a reversal on a ground that was not considered on the prior appeal. The fact that reversal is necessary in any event frees us from the compulsion that the rule of law of the case might otherwise impose on us to follow a ruling in the prior appeal that we now perceive to be manifestly erroneous. (State v. Zimmerman (1977) 175 Mont. 179, 573 P.2d 174, 178; State v. Hale (1955) 129 Mont. 449, 291 P.2d 229, 235; Barton v. Thompson (1881) 56 Iowa 571, 9 N.W. 899; Pennington v. Gillaspie (1910) 66 W.Va. 643, 66 S.E. 1009).
Searle, 696 P.2d 1308, 1313-14 (Cal.1985).
Although, for the reasons illustrated by Justice Johnson, this Court may decide to consider itself bound by that which is found in Sanchez I, and bears the responsibility for facilitating the ease with which the district court could reaffirm its earlier determination allowing the defendants a new trial unless Sanchez would consent to a reduction in his judgment on the verdict, nevertheless it is not out of order to express genuine concerns as to the validity of the district court’s actions on remand had this court not so paved the way.
On appellate review of a trial court ruling on a motion for a new trial a first concern is to consider the degree of deference the trial court accorded to the jury:
[Sjince it is a jury function to set the damage award based on its sense of fairness and justice, the trial judge must defer to the jury, unless it is apparent to the trial judge that there is a great disparity between the two damage awards *1076and that disparity cannot be explained away as simply the product of two separate entities valuing the proof of the plaintiff’s injuries in two equally fair ways.
Sanchez I, 112 Idaho at 615, 733 P.2d at 1240.
Other than Sanchez I and Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), neither of which had been decided prior to the time that the trial judge made his initial order requiring of Sanchez a remittitur of $400,000.00, or face a new trial, Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979), was the last recent case to discuss the appellate standards of review of a trial court order granting the extraordinary relief of additur or remittitur.
Dinneen’s discussion of the appellate review of trial court orders ruling on motions for new trials was based largely upon the unanimous opinion authored by Justice Shepard in Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972):
Moreover, as both parties to this appeal have recognized, ‘This court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused.’ Sanchotena v. Tower Co., 74 Idaho 541, 546, 264 P.2d 1021, 1024 (1953); Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972). Blaine v. Byers, supra [91 Idaho 665, 429 P.2d 397 (1967)]; Rosenberg v. Toetly, supra [93 Idaho 135, 456 P.2d 779 (1969)].
Dinneen v. Finch, supra, 100 Idaho at 626, 603 P.2d 575. In authoring the Meissner opinion, Justice Shepard placed substantial reliance on Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), which was decided just shortly before Justice Shepard was elected to the Supreme Court. The quotation above utilized in Justice Shepard’s Meissner opinion was taken directly from Blaine v. Byers, at page 667, 429 P.2d 397. Justice Shepard also quoted approvingly two other passages from that case in his Meissner opinion:
It has been stated ‘[the] [a]mount of damages is a question of fact, which is for the jury in the first instance and secondly for the trial judge on a motion for a new trial.’ Blaine v. Byers, 91 Idaho 665, 670, 429 P.2d 397, 402 (1967).
It is also stated:
On the other hand, however, the trial judge should not substitute his opinion on the amount of damages for that of the jury, [citations omitted] Additionally, the general rule which prevails in this jurisdiction is that a motion for a new trial should not be granted unless it appears that a different result would follow a retrial. Blaine v. Byers, supra at 671, 429 P.2d at 403.
Meissner v. Smith, 94 Idaho at 565, 494 P.2d at 497 (emphasis supplied).
What comes out of an attentive reading of Dinneen is that this Court’s standard of review of trial court rulings on new trial motions is firmly entrenched. Only when it is the conclusion of this Court that the trial judge has not exercised his discretion wisely, and thus abused it, will this Court interfere.
This standard was reaffirmed seven years after Dinneen in Quick v. Crane, 111 Idaho 759, at 768-769, 727 P.2d 1187, at 1196-1197 (1986). There Chief Justice Donaldson in discussing the function of a trial court in ruling on motions for new trials relied primarily on Dinneen, quoted from it extensively and concluded on the matter of the deference due a jury verdict as follows:
When the trial judge goes through the same evaluative process of assigning a damage award to the parties upon a motion for a new trial under I.R.C.P. 59(a)(5), he draws upon his experiences with previous cases involving general damages and comes up with a figure he believes is fair and just. Obviously, he has a much better idea of what the scope and limitations on such damages may be. His figure of damages will often be different from that of the jury’s. But, since it is a jury function to set the *1077damage award based on its sense of fairness and justice, the trial judge must defer to the jury, unless it is apparent to the trial judge that there is a great disparity between the two damage awards and that disparity cannot be explained away as simply the product of two separate entities valuing the proof of the plaintiff’s injuries in two equally fair ways.
In other words, if the trial judge discovers that his determination of damages is so substantially different from that of the jury that he can only explain this difference as resulting from some unfair behavior, or what the law calls ‘passion or prejudice,’ on the part of the jury against one or some of the parties, then he should grant a new trial. How substantial this difference must be is impossible to formulate with any degree of accuracy. It will necessarily vary with the factual context of each case and the trial judge’s sense of fairness and justice. Frequent characterizations have included the idea that the disparity must ‘shock the conscience’ of the trial judge or lead him to conclude that it would be ‘unconscionable’ to let the damage award stand as the jury set it. Gibson v. Western Fire Ins. Co., [210 Mont. 267] 682 P.2d 725 (Mont.1984); Mammo v. State, 138 Ariz. 528, 675 P.2d 1347 (1983). These characterizations, of course, do little more than restate the trial judge’s discretionary perspective but are, nonetheless, frequently employed in other areas of the law and, therefore, may be useful to the trial judge.1
Quick v. Crane, supra, at 769-770, 727 P.2d 1187 (emphasis in original).
As stated earlier herein, on appellate review, a first concern is whether the trial judge did give proper deference to the jury verdict. If not, then this court must decide whether the failure to do so was an abuse of discretion. Our opinion in Quick v. Crane expanded on Dinneen by taking recourse to Sheets v. Agro-West, Inc., 104 Idaho 880, 664 P.2d 787 (Ct.App.1983), quoting first from the opinion authored by Judge Walters, and in turn from the opinion authored by Judge Burnett,2 from which a quotation was adopted and set out at 111 Idaho 772, and 727 P.2d 1200.
Although our opinion in Quick v. Crane merely repeated the often-made statement that trial court rulings will be upheld “unless the court has manifestly abused the wide discretion vested in it,” the Court of Appeals provided us with a sound usable definition of discretion as compared to judicial discretion:
‘Discretion’ has been defined as a power or privilege to act unhampered by legal rule. Black’s Law Dictionary at 553 (rev. 4th ed. 1968). However, ‘judicial discretion’ is a more restrained concept. Lord Coke is said to have defined judicial discretion as an inquiry into ‘what would be just according to the laws in the premises.’ Id. Judicial discretion ‘requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair, and just determination, and a knowledge of the facts upon which the discretion may properly operate.’ 27 C.J.S. Discretion at 289 (1959). Discretion which violates these restraints is discretion abused.
Sheets, supra, 104 Idaho at 887, 664 P.2d 787. In speaking further to judicial discretion, the Court of Appeals amplified as follows:
*1078This exercise of adjudicative discretion has a substantial impact upon the litigants. It deprives the prevailing party of the benefit of victory, and it relieves the losing party of the burden of defeat. It confronts the parties with the prospect of investing considerable time, effort and money in a second trial. When a second trial does occur, it consumes the limited resources of our courts and disrupts the private lives of another set of jurors. Although an order for a new trial may not infringe upon trial by jury in a constitutional sense, it certainly represents a judicial invasion of the province of the first jury which sat in the case.
Sheets, supra, at 888, 664 P.2d 787.
Of interest in regard to what has been recently written on the subject of judicial discretion, over 75 years ago District Judge Walters in writing for the then three-member Supreme Court which included Justices Ailshie, Sullivan, and Walters, put it much the same as did Chief Justice Shepard in Meissner v. Smith. Judge Walters wrote:
The trial judge sees the witnesses on the witness-stand, observes the manner of their testifying, notes their apparent candor or fairness, or the want of it; hears the argument of counsel, and, in short, is in possession of many sources of information valuable in an inquiry as to whether justice has miscarried or not, and which cannot be made to appear in the record of the case which comes to the appellate court; and appreciating such fact, appellate courts have so frequently held, that it may be announced as settled law, that trial courts possess a discretion to be exercised wisely in the granting or refusal of new trials, and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.
Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410, 411-412 (1911).
[I]f the trial judge discovers that his determination of damages is so substantially different from that of the jury that he can only explain this difference as resulting from some unfair behavior, or what the law calls “passion or prejudice,” on the part of the jury against one or some of the parties, then he should grant a new trial.
Quick v. Crane, 111 Idaho at 769, 727 P.2d at 1197 (emphasis in original).
Application of that standard from Quick makes it abundantly clear that the $400,-000, or 29 percent, difference between the jury’s award and the judge’s figures was not so substantial that the difference could only be explained by passion or prejudice. In fact, the difference in the numbers resulted from, among other things, the judge’s use of a 50 percent impairment rating, setting no figure whatever for loss due to expenses for obtaining of household services, etc. To use the Quick language, the difference was “simply the product of two separate entities valuing the proof of the plaintiff’s injuries in two equally fair ways.” Far from finding that the jury was actuated by passion or prejudice, or that there was even an appearance of passion or prejudice, the trial judge went out of his way to praise the diligence and even-handedness of the jury:
I was impressed with the jury, I think. I thought we had a very well selected jury. I thought they were a good cross-section of age, income, occupations, intelligence, certainly conscientious. I don’t think I could say I’ve had a finer jury in any case and that made me extremely uncomfortable from that standpoint, to have to go back and second-guess.
Sanchez I, 112 Idaho at 616, 733 P.2d at 1241 (emphasis in original).
The inconsistencies of the trial court’s written opinion were not resolved on remand — but rather compounded — by retaining it and adding the language which our Sanchez I opinion noted as missing. The inclusion of those words did not amount to the findings which were required, and did not provide the reasoning or reasons displaying the wise exercise of a judicial discretion. Sheets v. Agro-West, supra, Quick v. Crane, supra. One cannot persuade oneself that the trial court’s written decision, as revised on remand, is internally *1079consistent. Rather it is internally inconsistent.
The most glaring inconsistency is the lower court’s ruling, under I.R.C.P. 59(a)(6) that there “was clearly sufficient evidence to support both the verdict in plaintiffs favor on the issue of liability and the amount of damages awarded to him." supra, p. 5 (emphasis added). Our prior cases have established that a verdict may not be set aside by the trial court where it is supported by substantial competent evidence. On a motion for a new trial, a judge has the power to order a new trial only if the verdict is against the clear weight of the evidence, a much higher quantum of evidence than that contemplated by the substantial competent evidence standard. See Quick v. Crane, supra. It follows that a ruling that a verdict on liability and damages is supported by the evidence under I.R.C.P. 59(a)(6) means that the verdict is supported by the clear weight of the evidence. A ruling that “clearly sufficient evidence” supports the jury’s assessment of damages unequivocally requires that a trial court give deference to the jury.
One can only wonder, then, how a jury’s verdict on damages can be supported by the clear weight of the evidence and, yet said to be the result of passion or prejudice? Clearly it cannot, and thus the district court’s order here under review remains highly suspect.
The proper process to follow when a trial court is moved to review a jury award for excessiveness is well-established. In Mendenhall v. MacGregor Triangle Co., 83 Idaho 145, 358 P.2d 860 (1961), Justice McFadden wrote for a unanimous Court:
The determination of the question of ex-cessiveness of an award by the jury first requires of the trial judge an examination as to the sufficiency of the record to sustain the award; then if he does determine the record is insufficient to sustain the award, he must next determine the amount of the award the record does sustain.
83 Idaho at 150, 358 P.2d at 862 (emphasis added). This language has been reaffirmed in Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), again in Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), and more recently in Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979). The clear reading of Justice McFadden’s opinion in Mendenhall is that if the trial judge determines that the verdict is supported by the record, then the inquiry is at an end. Claimed excessiveness of damages does not become an issue unless the verdict is not supported by the weight of the evidence. A verdict cannot both be supported by the weight of the evidence and at the same time be declared the product of passion or prejudice.
In reversing the trial court, we noted that missing from the trial court’s memorandum decision was any “finding that the amount of the jury verdict ‘appeared to have been given under the influence of passion or prejudice,’ ” and we directed that the trial judge “enter findings of fact as to whether he was in fact shocked by the jury award, or found such award unconscionable ...” 112 Idaho at 616, 733 P.2d at 1241. On reflection, it is seen that the Court should have attached some definitions. “Unconscionable” as a word of art is used only in connection with bargains reached in contract law, Black’s Law Dictionary 5th ed., and the word in general parlance is applicable when evaluating damage awards. Webster provides two applicable meanings: (1) Not guided by conscience; and (2) Shockingly unfair or unjust. “Conscience,” according to Webster connotes: (2) The thought of a feeling of obligation to do right; and (2) the expression of something done in all fairness, i.e., “in all conscience,” “in good conscience,” “in conscience.”
Black’s Law Dictionary 5th ed., is of the same vein as Webster, and provides: “The moral sense of discriminating between right and wrong as particularly applied to one’s perception of his own conduct."
After the trial judge in his initial order of January 7, 1985, made his review of the evidence, thus “weighing” it as he worded it, he stated, “I cannot in good conscience, come within $400,000 of the jury’s verdict.” *1080Using either Webster or Black’s, it is clear that the judge’s own moral sense was such that, had he been any one of the 12 jurors, or had the issue been submitted to him, he would have felt unfair in awarding damages in excess of $950,000.00, i.e., his own perception of his own conduct. That was a far cry from declaring that the jury had acted unconscionably, or, not guided by any conscience, or shockingly unfairly or unjustly. As a matter of fact, in January of 1985, after praising and commending the jury, and after having considered the same evidence which was before the jury in its deliberations, he declared the jury’s damage award “understandable. ” In January of 1985, the trial judge’s assessment of the two different figures arrived at — one by the jury, and one by him, was absolutely within the confines of the language in Quick v. Crane, 111 Idaho 769, 727 P.2d 1197. The difference was “simply the product of two separate entities valuing the proof of the plaintiff’s injuries in two equally fair ways.” It should not have surprised the trial judge, and in turn likewise not surprised this court, that 12 jurors from all walks of life, might award more damages than one jurist dedicated to but one walk of life. In fact, the judge himself did not profess to be surprised. Even stranger than that, when invited by this Court’s directive to declare that he was shocked by the amount of the jury’s award, he could not and would not do so, saying instead:
On line 25 of page 5 through line 14 of page 6 of my Memorandum Decision I tried to explain why I was not ‘shocked’ by the verdict. Unfortunately, instead of saying I was not ‘shocked’ by the verdict, I stated “the large verdict was understandable.” So that it is clear, I would add the words ‘and it did not shock me’ after the word ‘understandable’ on line 14 of page 6.
R., p. 138.3
The trial judge’s 1985 decision made no mention whatever of passion or prejudice other than to utilize it as a caption for Part II where he addressed the I.R.C.P. 59(a)(5) motion. Although the trial judge’s conscience was self-admittedly not shocked by the jury’s award, he nevertheless proceeded to accept this Court’s invitation to find the jury’s damage award unconscionable:
However, in then stating at line 18 on page 6 of my Memorandum Decision that “I cannot in good conscience come within $400,000 of the jury’s verdict,” I meant that I found the jury’s award of $1,350,-000 to be “unconscionable” in my judgment. So that it is more clear, I would add the words “and I find such an award unconscionable” after the word “verdict” on line 19 of page 6. Therefore, whether a required finding, or only a suggestion of a measuring stick, there need now be no mistake as to what was intended in this regard.
R., p. 138.
This delayed (28 months) interpretation of what he meant in January 1985 as to what he could not do in good conscience is per se contradictory to his statement that his own conscience was not shocked by the amount of the jury’s award. To say, as he brought himself to do in 1987, that the jury’s award was unconscionable was the same as describing it “shockingly unfair or unjust.” Yet at the same time he has belatedly said of the jury verdict that it did not shock him.
*1081Moreover, that which he wrote in 1985 was not an assessment of a conscienceless jury verdict, but was, pure and simple, an evaluation of the highest amount to which his own personal conscience would allow him to go. This internal inconsistency in his own decision is unacceptable on appellate review. And, it must be remembered that it was on the inconsistent statement as to what he meant by his own good conscience in 1985 that in 1987 he justified making the initial requisite finding as to passion and prejudice affecting the jury’s verdict:
After I stated on line 20 of page 6 of my Memorandum Decision that the $400,-000 difference between what I would award after weighing the evidence and that the jury awarded was a ‘substantial difference,’ I did not follow up with the appropriate specific finding. I would add after ‘difference’ on line 12, ‘and the disparity between the jury’s award and what this court would have awarded is so great as to suggest that the award is what might be expected of a jury acting under the influence of passion or prejudice.’
R., p. 138-139.
This finding, or as the trial judge put it, “suggestion of a measuring stick,” while it might have been acceptable and binding on this Court had it been laid before us in the record on the first appeal — absent, of course, the trial judge’s concession that the amount of the verdict was understandable and that, “There was clearly sufficient evidence to support both the verdict in plaintiffs favor on the issue of liability and the amount of damages awarded to him. ” — should leave any court with no alternative but to hold that judicial discretion was unwisely exercised in ordering a new trial unless Sanchez would accept an award $400,000 less than a unanimous and outstanding jury had awarded him.
Omitted in both versions of the trial court’s memorandum decision, i.e., the original dated January 14, 1985, and the amended version dated May 27, 1987, is any intimation of a belief that on a second trial a new jury’s assessment of damages would differ in result from the first jury.
The general rule which prevails in this jurisdiction is that a motion for a new trial should not be granted unless it appears that a different result would follow a retrial.
Meissner v. Smith, 94 Idaho at 565, 494 P.2d 567. This cautionary general rule is necessary due to the power of the judge’s exercise of discretion and its effect upon the parties.
This exercise of adjudicated discretion has a substantial impact upon the litigants. It deprives the prevailing party of the benefit of victory, and it relieves the losing party of the burden of defeat. It confronts the parties with the prospect of investing considerable time, effort and money in a second trial. When a second trial does occur, it consumes the limited resources of our courts and disrupts the private lives of another set of jurors. Although an order for a new trial may not infringe upon trial by jury in a constitutional sense, it certainly represents a judicial invasion of the province of the first jury which sat in the case.
Sheets, supra, 104 Idaho at 888, 664 P.2d 787.
Again, where Idaho case law has consistently required of a trial judge that he must anticipate a different result on a second trial, an exercise of judicial discretion which wholly ignores that factor cannot be said to be wise, especially in circumstances such as are presented here, where the trial court declared the verdict “understandable.”
What I have now just written is admittedly in all probability an exercise in futility insofar as this case is concerned. Because of the compromise opinion and the application of the law of the case doctrine to the second round of proceedings in the district court, it was impossible for me to not concur in Justice Johnson’s Part II opinion.
. Other than for the dissent of Justice Shepard, Dinneen was a unanimous opinion, and having Justice Bakes in the majority was to me personally rewarding. The essence of Justice Shepard’s dissent as I saw and see it was not directed at the rules of law recapitulated from previous cases, but rather was his belief that the trial judge in that case "allowed the jury verdict to stand as the result of its resolution of the conflicting evidence.” 100 Idaho at 628, 603 P.2d at 583. He cited in support of his view the very cases which supported the Dinneen opinion, one of which he had authored (Meissner ) and one of which he joined (Rosenberg v. Toetly).
. Our opinion in Quick v. Crane refers to Judge Burnett’s opinion as being a "unanimous concurring opinion.” Because the other two judges joined the opinion, it is actually a second opinion for the Court as observed by West Publishing Co. in preparing headnotes.
. The trial judge’s January 1985 memorandum decision on this point in full was this:
I have never tried a case which was more thoroughly prepared for trial nor more skillfully presented, including the effective use of visual aids. The plaintiff is a handsome man, likeable and appealing, who obviously made a very favorable impression on co-workers as well as doctors, psychologists, therapist, and other professionals who worked with him. His attending physician was exceptionally competent and knowledgeable in his field who had available for viewing detailed photos of most stages of his surgeries and medical treatment of the plaintiff. He had taken numerous photos to assist him in lectures on the surgical repair of hands. I cannot say that I have ever witnessed a better prepared or more thorough and skillful representation by defense counsel either, but the chips here just seemed to be stacked heavily in plaintiffs favor. Accordingly, the large verdict was understandable.
R„ p. 42-43.