I dissent.
I. The courts have power to grant new trials conditioned on remittiturs. At least since 1864, this court has- assumed and exercised such power. Brockman v. Berryhill, 16 Iowa 183. At least since 1822, the federal courts have sustained like rulings. Blunt v. Little (C. C.), 3 Mason 102 Fed. Cas. No. 1578. But each time a verdict is set aside, the right to a jury trial is, to that extent invaded, despite the admonition of Article I, section 9, of the Iowa Constitution. “The right to a jury trial shall remain inviolate * *
The courts have so long exercised the right to- order a remittitur, or in the alternative1 a new trial, that little attention is now given to- the fact that this right is in derogation of the basic constitutional right quoted above.
The constitutional problem is- recognized by others.
“The motives of judges who easily remit excessive jury verdicts can be appreciated. That the practice will hasten the termination of civil suits, decrease expenses to the litigants, reduce the number of retrials, and help to clear congestion in the courts is recognized. However, serio-us problems remain in regard to invasion of the jury’s province and violation of the litigants’ constitutional right to a jury trial. The application of some fictitious standard to determine whether a jury verdict is excessive often results in the rather undesirable practice of an appellate court substituting its opinion for the jury’s on a factual determination. ‘Judges, as judges of the facts, have all the faults, but not all the virtues of juries.’ ” Remittitur of Jury Verdicts in Iowa, 48 Iowa Law Review 649, 665.
See Dimick v. Schiedt, 293 U. S. 474, 55 S. Ct. 296, 79 L. Ed. 603, 95 A. L. R. 1150. Mr. Justice Sutherland recognized for the majority of the Supreme Court of the United States, when considering the propriety of imposing additurs as a condition to- prevent granting a new trial, that a constitutional problem does exist.
*165This is not to say that courts do not have the constitutional po-wer to grant remittiturs as an alternative to a new trial. The practice is too firmly imbedded in our system for any such judicial change. But it is proper, and indeed necessary, that in using this power we remind ourselves that in so doing we invade the province of the jury. Constitutional powers can be unconstitutionally used.
It is probable that the tacit recognition of the fact that courts do invade the province of the jury gives rise to such statements as:
“Consequently, we find it difficult to reconcile the verdicts of certain juries and some of our eases in which we heretofore held some verdicts as excessive. In fact it is virtually impossible to do so. All we can do :and should do is to' leave the matter of the verdict to the jury in any particular case. Only when it can be affirmatively shown that prejudice and passion existed should this court interfere, or when there has been an apparent disregard of the evidence or of the law as given in the instructions. Grafton v. Delano, 175 Iowa 483, 492, 154 N.W. 1009; Engle v. Nelson, 220 Iowa 771, 784, 785, 263 N.W. 505. It has also been stated by this court that a further test for determining whether a verdict should be set aside because of its excessiveness or inadequacy is that it shocks the conscience. In re Estate of Hollis, 235 Iowa 753, 760, 16 N.W.2d 599, and eases cited.” DeToskey v. Ruan Transport Corp. (1949), 241 Iowa 45, 49, 40 N.W.2d 4, 7, 17 A. L. R.2d 826.
Justice Wennerstrum found it virtually impossible to reconcile Iowa cases on this subject in 1949 in DeToskey v. Ruan, supra. It is not unreasonable to observe that the situation has not improved in 1965. Of course DeToskey v. Ruan was one of the cases where this court decided not to reduce the verdict. Where we have decided that the verdict is too large, different emphasis is given to the phraseology used.
“However, even with our conclusion expressed in the preceding division, there remains the question of whether the amount allowed failed to' administer substantial justice. If, although passion and prejudice does not appear, the verdict is so large that it appears to be beyond the limits of fair compensation *166for the injuries shown, it is within onr power, in fact it is our duty, to correct the error by requiring a remittitur on pain of a grant of a new trial. We must take care that we do not invade the province of the jury in so doing; but we have often held that such procedure is required to overcome a manifest mistake in the allowance made.” Ferris v. Riley, 251 Iowa 400, 414, 101 N.W.2d 176, 184. To me, the last sentence simply gives lip service to a rule that is being violated in the two preceding sentences.
The fair compensation rule is noted in 48 Iowa Law Review at page 659 to be the most recent standard utilized. The author’s conclusion seems justified that “this test will also lead to the'substitution of the judge’s opinion for that of the jury.”
That analysis is correct. The confusion of cases that leads to the analysis is untenable. The jury’s prerogative should not be invaded unless its actions do in fact shock the conscience, or clearly display passion and prejudice.
Justice Thornton spoke for the court in Mazur v. Grantham, 255 Iowa 1292, 1304, 125 N.W.2d 807, in setting aside a remittitur ordered by the trial court: “For us to interfere merely substitutes our judgment for that of the jury, this should be done with extreme caution.” I would speak more strongly. Where judges are merely substituting their judgment for that of the jury they should not act at all! To do so is contrary to the constitutional mandate.
II. Failure to leave the question of damages in this case where it belongs has driven the majority to' a rationalization that has been used before, Mallinger v. Brussow, 252 Iowa 54, 105 N.W.2d 626, but is difficult to' justify. Using the loss¡ to decedent’s estate, i.e., that amount that decedent would have accumulated in the estate had decedent lived, reduced to its present worth, the majority shows that the real value of this award is not $28,000 but more than $308,000; albeit, in terms of the year 2026 — 63 years from date of death.
A thorough analysis of the pernicious effect of the rule that gives rise to such reasoning would be too long to be justified in this dissent but a short analysis is necessary. Fitzgerald v. Hale, 247 Iowa 1194, 78 N.W.2d 509, criticizes our historic interpretation of our survival statute, borrows from Chase v. Fitzgerald, *167132 Conn. 461, 469, 470, 45 A.2d 789, 793, 163 A. L. R. 247, 252, and takes care of the pain and suffering element before death. The broader impact of Chase v. Fitzgerald under which the new Connecticut rule was set forth was ignored. Connecticut concluded :
“The rule for measuring damages resulting from death may then be briefly summarized as follows: It .is that sum which would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life’s activities as he would have done had he not teen hilled, including the destruction of his earning capacity, for such time as he would probably have lived, but with due allowance for the effect which the ordinary vicissitudes of life might have had upon his continued enjoyment of those capacities and, as far as. destruction’ of earning capacity is concerned, for the fact that a present payment will be made in lieu of sums which, had he lived, would have been received at periodic times in the future.” (Emphasis added.)
Where then does such quotation take us in this ease 1 The recovery is for more than, accumulation to be expected and for more than merely lost earning capacity. The reduction to present worth under the foregoing rule would be for sums in connection with earning capacity “which, had he lived, would have been received at periodic times in the future.” Thus the 63-year basis for determination of future value of the amount awarded would be unsound.
It will be said that we do not have the above rule in Iowa. This is true. But I cannot accept the reasoning in this case, designed to set aside a jury verdict, based on a rule that is clearly wrong. We need not here set aside our present rule to reinstate this verdict, but neither should we rely on the harshness of the rule in order to sustain the lower court’s action.
It is deeply disturbing that the majority should resort to the $308,000 — some 63 years hence — argument. The reduction to present worth is possible only after the determination of future earning capacity which does not lend itself to exact mathematical formulas. As stated in Mallinger v. Brussow, supra, the award o£ damages for a wrongful death is necessarily at least somewhat of an approximation. This is why the jury plays Such an important part in our system of jurisprudence.
*168III. The following articles criticize the rule we have adopted and perpetuated and urge its change. 11 Iowa Law Review 28; 5 Drake Law Review 98; 39 Iowa Law Review 45; 48 Iowa Law Review 666.
Significantly the 1963 article in 48 Iowa Law Review gives up hope that this court might do for wrongful death damages what it did for pain and suffering before wrongful death. Yet we have recognized our1 duty to- act in these situations.
“Courts are properly slow to overrule a line of decisions, even though, as here, the change will -affect no property rights or interests. Moreover, there is a rule of statutory construction that when a statute has received a judicial construction and is substantially re-enacted, such construction may be regarded as having been adopted by the legislature. 50 Am. Jur., Statutes, section 443; 82 C. J. S., Statutes, section 370b (1). However, these matters do not constitute a bar to- the correction by a court of its palpable errors. They are merely factors to- be weighed in determining the advisability of such correction.” Fitzgerald v. Hale, supra, at pages 1204, 1205, of 247 Iowa.
This review is made because the majority postulates its reversal in part at least on a mathematical extension of the rule.
IY. In arriving at the $308,000 (or more) value to this estate the majority’s argument ignores the cost of securing the judgment, that is, attorney fees, expert witness fees, and so forth. While we have consistently (and perhaps properly) ignored such mundane matters, I cannot believe that they should be ignored when using the formula for future- worth of a verdict. It cannot be considered fair and sensible to multiply $26,079 by 11.83 and charge the estate with the future worth of that sum when we know that the estate is not going to get that sum.
V. The tactical maneuvering in this ease resulted in a situation that reduced the possibility of passion and prejudice from record evidence to zero-. Plaintiff did not request a jury. Defendant asked for a jury. Defendant then admitted liability and asked that the plaintiff be- admonished not to offer evidence in connection with the liability aspects of the case. The record shows plaintiff’s attorneys were so- admonished, and apparently respected the ruling, for defendant does not complain. Therefore only damage evidence- was presented to the jury.
*169The case was carefully tried. The observation of Federal District Judge Holtzoff (Distinct of Columbia) is justified. “The court might add, in conclusion, that this is not a case where the jury might have been influenced by some dramatic circumstances or by some inflammatory remarks. Nothing of that kind occurred during the trial. Counsel for both sides tried this case on a very high plane and in a very objective, lawyerlike fashion.” Reed, Admr. v. Gulf Oil Corporation, 217 F. Supp. 370, 373. If such remarks can be attributed to this ease, and the record indicates they can, and if there was no evidence bearing on any subject but damages, the rationalization to support the trial court’s actions simply cannot be placed on passion or prejudice on the part of the jury.
VI. The majority refers to unsatisfactory results of comparison of verdicts. This is tine. However, I do not believe we should altogether ignore what is happening around us. See annotation, Excessiveness and inadequacy of damages for personal injury resulting in death of infant. 14 A. L. R.2d 550, Later Case Service, 1965, where cases involving the wrongful death of infants are collected, many exceed the amount the jury awarded here and many more exceed the amount that the trial court would have the plaintiff accept. This annotation gives force to the author’s observation at 48 Iowa Law Review 649, 658:
“Other criteria have been employed by the Iowa court to determine whether a jury’s award is excessive. One of these is whether the verdict is so clearly excessive that it shocks the judicial conscience. In applying this test the court reviews the record of the case and determines whether the damage award of the jury is so excessive as to be unconscionable. No attempt has been made to determine who or what the judicial conscience is, and it would appear that this ‘conscience’ may well be that of the individual judge urging his personal convictions in the case. At most, this conscience can be no broader than that of the Iowa court, for it would be extremely difficult to accept the notion that Iowa verdicts can be so large as to generally shock the judicial conscience when substantially larger verdicts are being affirmed in other jurisdictions.”
*170VII. We should not make the present death and damage instruction the law of this case. “Parties to a litigation have ho vested right in the court’s mistakes to prevent their correction at any time before final judgment is entered.” Weaver, J., in Darling v. Blazek, 142 Iowa 355, 358, 120 N.W. 961, 962.
Since the plaintiff may well elect to retry this case and since we make a point of the failure to seek a new rule of damages, plaintiff should be free to make a record on that matter on retrial.
VIII. Nothing has been said about the concept that human life does have value over and above what can be estimated by foreseeing the accumulation capacity of the human being. We do not yet recognize such concepts in our Iowa law. For my part, I think we could study the recent Michigan decisions with profit. Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118.
This court may well continue to substitute its judgment and the judgment of the trial judge for that of the jury. However, it will require a verdict that does in fact shock my conscience within the social and economic framework of our age, before I can concur in such limitation, either by the trial court or this court, to the right of trial by jury.
,1 would reverse.