(concurring).
I concur in the result reached in this cause, but feel called upon to comment upon two facets of the case with which I am not in complete accord.
The exercise in trial brinkmanship by plaintiffs’ counsel in pleading and in reading to the jury the statutory requirement of brakes upon a pole trailer is not to be commended. Our record shows that hundreds of dollars were spent upon pretrial depositions and it is inconceivable that counsel urged in good faith the statutory *638requirement of brakes upon the trailer involved in the suit. This effort to plant the seed of a legislative requirement in the minds of the jurors actually influenced at least one juror to the extent that he made his own, and incorrect, investigation of the law. For the reasons announced in the majority opinion, I am of the opinion that the misconduct of the juror did not constitute reversible error. However, so believing, I cannot but condemn tactics which make such a determination necessary.
Secondly, the standards laid down for our guidance in the review of damage findings leave much to be desired. In fact, from my study of the subject, I have concluded that there are no guidelines laid down for an appellate review of monetary awards in suits for damages involving personal injury and death or allowances for pain and suffering. Yet, we are required by rule and controlling decisions to exercise review jurisdiction over such awards. Rule 440; Wilson v. Freeman, supra, 185 S.W. at p. 994; Flanigan v. Carswell, supra, 324 S.W.2d at p. 840.
The question is not quite as acute in situations wherein the damages involved are more susceptible of exact proof, e. g. market value of personal property. Rector v. De Arana, 398 S.W.2d 911, 913 (Tex.Sup., 1966). But, even in this general type of case, we are told by our Supreme Court that “there is no rule prescribing the manner by which the court determines the amount of remittitur.” Adams v. Houston Lighting & Power Company, supra, 314 S.W.2d at p. 830.
In reviewing a damage award challenged as being excessive, courts of civil appeals must, of necessity, move with caution.
“Before the appellate court considers the verdict, twelve jurors and an experienced trial judge have determined that the verdict is reasonable under the facts of the case. They have seen and heard the witnesses and the plaintiff.” Comment, 29 Tex.Law Rev. 347, 352 (1951).
The practice of comparing awards made in other cases is unsatisfactory for the obvious reason that no two cases are alike. The review of other decisions as a guide is likewise subject to the criticism that the appellate court has gone outside of the record and considered evidence, i. e., what other courts have awarded, when such evidence could not, under any theory, have been admissible for consideration by the jurors.
In the other permissive approach, consideration confined to the record in the particular case under review without recourse to prior decisions, the appellate court is without any definitive guide or rules prescribing the manner in which it determines the amount of the remittitur (Adams Case, supra). Under this method of review, the process is essentially one of subjective ratiocination by three judges who have not seen or heard a living witness with any knowledge of the facts.
This ad hoc determination is, of necessity, based primarily upon a visceral reaction to the whole case as affected by the idiosyncrasies of the reviewing judge at the time the determination is made. Presumably, he will bear in mind that the law furnishes no other criterion by which to measure the damages which may be given than the discretion and sense of right and justice of the jury. Thomas v. Womack, 13 Tex. 580, 584 (1854). Likewise, he will remember that he is not permitted to consider the sum which he, if he had been a member of the jury panel, might have awarded in the case. Galveston, H. & S. A. Ry. Co. v. Stevens, 94 S.W. 395, 397 (Tex.Civ.App., 1906, error ref.).
Instead, in the seminal case of Texas & N. O. R. Co. v. Syfan, 91 Tex. 562, 44 S.W. 1064, 1066 (1898), he is told to use this method of procedure:
“ * * * the court must first arrive at a conclusion as to what sum would be held to be reasonable if it had been assessed by the jury, before it could determine that the verdict was excessive in *639amount; and the court in concluding that $3,500 would he considered a reasonable sum if it had been assessed in favor of the plaintiff, necessarily determined that the verdict of the jury was excessive in the sum of $2,061. The vice in the verdict consisted in the excess which constituted the only ground for interfering with the judgment. The re-mittitur eliminated the excess, and purged the verdict of the vice, leaving no ground for reversing the judgment.”
The Syfafi court then tells us that
“The $3,500 was the proper part of the verdict of the jury which tried the case. The judgment, therefore, of the court of civil appeals, was entered, not upon its own finding, but upon the verdict of the jury, after it had been purged * * * ” (Emphasis supplied.)
The problem is aggravated when we realize that the question is one peculiarly within the jurisdiction of the courts of civil appeals, and its action, providing the “correct rule” is followed, is ■ not reviewable by the Supreme Court. Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899, 904 (1934); Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416, 421 (1936).
After reviewing the record in this cause and bearing in mind the inadequacies of the legal guides governing our action in the matter, I concur in the finding that $17,500.00 would have been “reasonable if it had been assessed by the jury”, and, consequently, the verdict of the jury is “excessive in the sum of” $2,500.00. Thus, for want of more specific criteria by which to measure the amount of the award, and following the rationale of Syfan, supra, I concur in the entry of judgment “not upon [our] own finding, but upon the verdict of the jury, after it [has] been purged.” (44 S.W. at p. 1066). In so doing, however, I cannot help but comment that this is a rather tenuous line of reasoning and smacks more of an exercise of judicial discretion involving facts rather than law.