Railroad v. Roberts. But such remittitur cannot be entered over the protest of the successful plaintiff, and if he do not assent thereto the circuit judge must set aside the judgment and grant a new trial. Massadillo v. Railway Co., 89 Tenn., 661, 15 S. W., 445. The general rule is stated as follows: The trial judge may, as a condition of denying the motion for a new trial, made by the defendant in an action of debt, require a remittitur of part of the verdict which he deems excessive, but it is optional with the plaintiff to comply with such condition or suffer a new trial. Young v. Cowden, 98 Tenn., 588, 590, 40 S. W., 1088, citing Branch v. Bass, 5 Sneed, 366; Railroad v. Jones, 9 Heisk., 27; Massadillo v. Railroad Company, 89 Tenn., 661, 15 S. W., 445; Railroad v. Wallace, 91 Tenn., 35, 17 S. W., 882; Railroad v. Garrett, 8 Lea, 450, 41 Am. Rep., 640; Railroad v. Foster, 10 Lea, 366, approved in Tel. Co. v. Frith, 105 Tenn., 174, 58 S. W., 118. In Railroad Company v. Garrett, 8 Lea, 438, 41 Am. Rep., 640, it was held to be an error, but not reversible under the facts of that case, to require a remittitur if the defendant would abide by the judgment and not appeal, and when the defendant would not agree the judg ment was allowed to stand. The defendant in case of remittitur cannot be requir ed to abandon or waive his right of appeal as a condition to acceptance by plaintiff. Railroad v. Foster, 10 Lea, Railroad v. Roberts. 351, 366; Tenn. Coal Co. v. Roddy, 85 Tenn., 400, 5. S. W., 286. These cases show the extent to which this court has gone in suggesting remittiturs in this court and approving remittiturs in the court below. As before stated, the practice in this court has heretofore been, in cases of excessive judgments for damages for personal injuries, to set them aside and remand for a new trial, if the verdict is so excessive as to evince passion, prejudice, or caprice. When the excess does not go to this extent, the verdict of the jury and judgment of the court below is not disturbed by this court. Tenn. Coal & Ry. Co. v. Roddy, 85 Tenn., 400, 5 S. W., 286. The rule prevailing in a large number of States of the Union is that a remittitur may be required as well in this court as in the trial court. 18 Enc. Pleadings and Practice, p. 137, and authorities there quoted. It is also laid down in 18 Enc. Pleadings and Practice, 125, that the great weight of authority is that a court may permit or require the entry of a remittitur in actions for unliquidated damages for torts. See cases cited. Again it is said: "It is a very common practice for an appellate court, when it deems the damages excessive, and this is the only error, to require a remittitur of the amount considered excessive as a condition to the affirmance of the judgment." In support of this a large number of cases are cited from the following States: Railroad v. Roberts. Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, Ohio, Oregon, Texas, Washington, Wisconsin, and cases from the federal and United States supreme court. In many of these States the rule has been adopted in later cases over a contrary holding in earlier cases. Notably is this case in Missouri, as is shown by the case of Burdict v. Missouri Pacific Ry. Co., 123 Mo., 221, 27 S. W., 453, 26 L. R. A., 384, 45 Am. St. Rep., 528. This is a well-considered case and extensively annotated, and the different holdings in the several courts are distinguished and illustrated. In some States, as in Louisiana, it is held that the court has power to cut the verdict without the assent of the parties; but the great weight of authority is that it cannot be done over the protest of the successful plaintiff. See our own cases heretofore cited, especially Massadillo v. Railroad Company, 89 Tenn., 661, 15 S. W., 445. The doctrine of remittitur applies to damages in torts as well as to damages for breach of contract. The judge may set aside the verdict in such cases in toto. It follows that he may determine what would be a reasonable amount. Such is not a usurpation by the court of the province of the jury. The facts have been passed on by a jury, and the right to recover has been determined by the jury, and not by the court. The judge expresses his opinion as to the reasonableness of the amount, the Railroad v. Roberts. plaintiff accedes to the justice of the judge's estimate, and agrees to accept it; and, while the judgment is for an amount smaller than that found by the jury, it is a judgment based upon facts which the jury have found fixes liability, and not upon facts found by the court. Branch v. Bass, 5 Sneed, 369; Young v. Cowden, 98 Tenn., 589, 40 S. W., 1088; Arkansas Valley Land Co. v. Mann, 130 U. S., 69, 9 Sup. Ct., 458, 32 L. Ed., 854; 18 Enc. Plead. and Prac., 127; Burdict v. Mo. Pac. Ry. Co., 123 Mo., 221, 27 S. W., 453, 26 L. R. A., 384, 45 Am. St. Rep., 528. It may be said that this practice of requiring a remittitur is the exercise of original jurisdiction by this court and in the same connection it may be said that, if this court has the right to reduce the judgment of the court below it has the right to increase it. Neither of. these objections are well grounded. This court cannot, and does not render any judgment as an exercise of original jurisdiction when it reduces the verdict and judgment of the court below. It merely reviews and corrects the judgment rendered to the extent of the excess; and, as to this excess, it may very well be said there is no evidence to sustain it. But it cannot give judgment for an amount in excess of what the jury has found, which the jury has not found, for that would be the exercise of original jurisdiction. In the cases of Hutchins v. St. Paul, M. & M. Co., 44 Minn., 5, 46 N. W., 79, it is said, in substance, that, 113 Tenn-32 Railroad v. Roberts. while no court has any right to substitute its own estimate of the damages for that of a jury, yet it has the right to determine the amount beyond which there is no evidence, upon any reasonable view of the case, to support the verdict. In a number of cases it has been held that when the damages are so excessive as to evince passion, prejudice, or caprice, the error cannot be corrected by remittitur, because such passion, prejudice, and caprice will be presumed to have permeated the entire verdict, and to have influenced or caused the finding of the question of any liability on the facts. See cases cited in 18 Enc. Plead. and Prac., 144. We cannot admit the soundness of the view of these cases under our practice. If a jury, through passion, prejudice, and caprice has given a judgment, whether excessive or not, when the facts do not warrant any judgment, it is the practice of this court to set aside the verdict, because there is no evidence to support it. But when the court can see that there is liability, and especially when that liability is conceded for some amount, as in the present case, and the only error is the reason to set aside the verdict in toto, if justice and right can be reached by reducing the damages. There may be cases where a verdict for any amount whatever would evince passion, prejudice, or caprice, and these cases can readily be reached under the rule of this court to reverse when there is no evidence to support the verdict. The courts are not uniform in the mode of sub |