(dissenting in part and concurring in part).
Aside from the excessive verdict, which was reduced, I find nothing in the record to indicate bias, prejudice, or passion on the part of the jury. Exercising a.sound discretion, the trial court overruled the motion for á new trial because the necessity therefor on this ground was avoided by the remittitur. This court should not interfere with such discretion. Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243, is not controlling here because, in that case, the misconduct of counsel for the plaintiff incited the passion and prejudice which affected the verdict. In the later case of Dimick v. Shiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, which recognized the authority of federal courts to deny a motion for a new trial because of an excessive verdict, if the plaintiff will remit the excess, the court says that this authority is imbedded in long practice and has plausible support in the view that what remains of the recovery was found by the jury.
I agree that the court erred in its charge upon punitive damages. The issue of ratification by the sheriff of the acts of his deputy should have been submitted to the jury. This court may notice a plain, error, in the interest of justice, even though not excepted to on the trial. I also concur in the ruling that the court did not err in refusing to hear the testimony of jurors in impeachment of their verdict.