To the like effect is D. & R. G. R. Co. v. case, it must be ascribed to prejudice, parHeckman, 45 Colo. 470, 101 Pac. 976.

mere consent of plaintiff to accept it. That ered in comparison with verdicts in similar action was a plain violation of law, because what the Code of Civil Procedure gives, in the situation here disclosed, and all that it gives, is a right to the losing party to have, and it makes it the duty of the court to grant, a new trial.

In Sloan v. N. Y. Cen. & Hud. River R. R. Co., 1 Hun, 540, a personal injury case, the New York court said:

"The court cannot, in action of tort, reduce a verdict of a jury, because it is deemed excessive. The only remedy in such a case, is to set it aside and order a new trial."

In 18 Ency. P. & P., page 144, it is said: "Where the damages are so excessive as to be accounted for only on the ground of passion or prejudice on the part of the jury, a remittitur will not cure the error, as such passion or prejudice will be deemed to have influenced the finding of the jury on the issues of fact."

In Gulf, etc., Ry. Co. v. Coon, 69 Tex. 730, 7 S. W. 492, the court, in a suit for personal injury to a passenger, said: "The trial judge concluded that it was excessive, as he required plaintiff to enter a remittitur of three thousand dollars as a condition to his overruling the motion for a new trial. If the judge was of opinion the verdict was excessive he should have granted a new trial. The damages are assessed by the jury; if the verdict is excessive the judge, in actions like this, has no measure by which to determine how much it is excessive; his attempt to do so is an invasion of the rights of the jury. His only course in such a case is to grant a new trial."

Since, therefore, on principle and authority, the finding of the court that the verdict was excessive must be treated, in legal effect, as a finding that it was returned under the influence of passion or prejudice, it was reversible error to allow plaintiff to remit a portion of it, and enter judgment for the residue, because the gist of the whole matter is that no trial by an impartial jury has been had. To permit the court, in such situation, to substitute its judgment, as to the amount which the plaintiff ought to have, for that of a jury, would be in effect to deny the right of the defendant to such a trial as the general laws provide and the Constitution guarantees.

cases, which our own and other courts of last resort have said furnish inherent evidence, solely because of the large sums allowed, of having been returned through the influence of passion or prejudice, such, or like considerations, must also be held to have been the moving cause for the one under review. We are all the more persuaded to this view because another jury, at a former trial, having equal opportunity with the one that returned this verdict, to ascertain and know the character and extent of the injuries sustained, and as well all the facts and grounds upon which plaintiff's right to recover at all were based, fixed the sum of $5,200 as proper compensation; and by the further fact that the presiding judge at the trial in which this particular verdict was returned, required that $28,750 should be remitted therefrom; and also by the further fact that the plaintiff consented to the surrender of that vast sum. If $38,750 fairly represented the amount which plaintiff justly ought to recover, for the injuries, temporary and permanent, which he sustained, and for his mental suffering and physical pain, we are quite persuaded that it is highly improbable that another jury would have declared less than one-seventh as much sufficient to satisfy his claim; nor is it likely that the judge presiding at the trial in which the verdict was returned, being well and fully advised, with all material facts before him, would, or could, under such circumstances, say that the amount returned was almost four times the sum, which in his calm, impartial and judicial judgment, the jury should have given; nor does it seem possible that had the plaintiff himself, or his counsel, believed that he was entitled, in fairness and truth, to $38,750, there would have been voluntarily remitted of that amount, once secured to him, more than two-thirds of it.

The plaintiff was by occupation a miner and able, according to proofs, by working continuously, to earn approximately $1,200 a year. That plaintiff was seriously, painfully and to a degree permanently injured, seems clear from the evidence. It appears that his right collar bone was fractured, and three ribs of the lower left side broken; that his general circulation was impaired, and that the broken ribs have never united, but ex[3] Independent of a consideration of the tend out from the general contour of the finding of the court in its purely legal effect, chest about an inch, and do not give such in the light of former decisions of this full protection to some of the vital parts, as court, and of the courts of last resort in they should and would afford in normal conother states, upon the same question, it is dition. That the right collar bone is shortinconceivable that, upon the facts proven, aened one-half an inch and also the left leg, verdict for the extraordinary sum of $38,- to a like extent, which makes him perma. 750 represents the sound, wholesome, unim-nently lame. He is compelled to constantly passioned and impartial judgment of a jury, whose sole duty, under the law and facts, was to award just and reasonable compensatory damages only. Upon all of the evi

wear a belt, to mitigate the discomfort caused by the condition of the broken ribs. No injury is shown to his mental faculties; none of his limbs were broken, and none of

shows that at the time of the trial he was | ing with verdicts of juries, and that an apable to be about without the aid of crutches pellate court should hesitate not only because or other assistance, and that he had recent- of the delicacy of undertaking to set aside ly been upon prospecting tours. The only the finding of the constitutional triers of direct evidence going to his ability to work fact, but because of the concurrence with the at the time of the trial was the answer of jury of the judge presiding at the trial. But the physician who attended him in his ill- if, after giving due weignt to the verdict of ness, to the question whether in his present the jury and the approval of the circuit condition he could do a man's work, which judge, this court is clearly convinced, in a was, "Not' at the present time." case in which the plaintiff is only entitled to recover compensatory damages, that the jury has gone beyond compensation and inflicted punishment on the defendant under the influence of passion or prejudice, it is bound by the weightiest considerations of duty to direct a new trial. To refuse to do so is to abandon the defendant to the arbitrary will of the jury. The supervising control of the courts, both of original and appellate jurisdiction, is, in this country, an integral part of the jury system, and as indispensable to the right administration of justice as the panel of twelve men.

The nature and extent of the injuries considered, the verdict is quite the largest to be found in the annals of judicial history. The deliberations of the jury are secret, the presence or absence of passion or prejudice concerning them must therefore, as a rule, be determined from the amount of the verdict itself. If there is in the verdict inherent evidence of such passion or prejudice there should be no hesitancy on the part of the court to so declare, and act accordingly. There are three cases of special interest which have been determined by this court, where it was held that the verdicts, because of their respective amounts, carried inherent evidence that they were induced by passion or prejudice. We refer to the reasoning in these opinions in support of our conclusion here, as being in harmony with it. The cases are Deep Mining & Drainage Co. v. Fitzgerald, 21 Colo. 533, 43 Pac. 210, Davis Iron Works Co. v. White, supra, and D. & R. G. R. R. Co. v. Scott, 34 Colo. 99, 81 Pac. 763. In each the record shows the injuries to have been certainly as grievous as those received by plaintiff, and without doubt in the Fitzgerald Case vastly more serious and abiding.

"We are well satisfied that the damages are excessive and the result of passion or prejudice in the jury, and the judgment is reversed and the cause is remanded with directions to grant the appellant a new trial.”

These suggestions are specially applicable here and correctly, as we think, indicate the duty of the court in the present case, as upon a full consideration of the entire record, with all inferences legitimately to be drawn therefrom, we reach the irresistible conclusion that, when viewed in the light of the facts and circumstances disclosed by the evidence, a verdict of such unusual proportions must have been the result of either passion or prejudice, or of a total misconception by the jury of its duties and obligations under the law. In either event it is vitiated in its entirety. Upon the authority of Davis Iron Works Co. v. White, supra, such a verdict could not properly be made the basis for any judgment whatever. A new trial should have been granted.

[4] There is no general charge of negligence in the complaint. The negligence complained of is alleged specifically, and is charged in these words:

"Plaintiff alleges that on the said first day of May, 1905, when the plaintiff entered on the first work of the day the defendant Wal

An instructive and leading case, also in accord with our views, where a large number of authorities are reviewed and discussed, is that of Louisville & Nashville R. R. Co. v. Fox, 11 Bush (Ky.) 495. That was an action for personal injuries, to recover the sum of $150,000, with $5,000 added for medical treatment and attendance, and $500 for baggage lost. The verdict was for $35,500. The opinion states that the value of the baggage was shown to have been $500, and the expense of medical treatment and attendance $5,000; and for personal injuries $30,000. There was no evidence in the case of passion or prejudice, except as furnished by the amount of the verdict. Upon a full consid-ter Swanson entered the stope and ordered eration of the whole record, and a search ing analysis of the entire transaction, the court reached the conclusion that the amount of the verdict alone furnished evidence that it must have been reached through the influence of passion or prejudice. The injuries to Fox seem to have been far more severe and permanent, and his suffering far greater, than plaintiff's. In concluding the opinion, having reference to the duties and obligations of courts under such circumstances, it was said:

"We concede that courts of all grades should exercise extreme caution in interfer

him to get a bar and spread the top posts of the top square set so as to allow a displaced cap to slip back in its place; that plaintiff refused to do so, replying to Swanson that the braces below were shot away and it was dangerous to spread top posts without restoring them and that if let alone he would restore the cap to its place safely and properly; that said Swanson then knowing that the braces were shot away and that pressure spreading the top posts would probably cause the entire timbering to collapse, without replacing the braces negligently spread the top posts with a cross-bar and

thereby caused the whole timbering at the [ and in possession either personally or through point to collapse burying plaintiff in the ruins, without any fault or negligence on his part."

INGS.

A defendant alleging in his answer a specified payment by him may not complain of the judgment granting him relief only to the extent demanded in the answer.

7. JUDGMENT (§ 253*)-CONFORMITY TO PLEAD-] and that Brown would make Jackson surrender. A short time after this, Linn went to Missouri to investigate. He found that Jackson was in possession of the land, under the contract, and had been in such possession several months before Linn and Brown had exchanged deeds, and Jackson said he expected to remain in possession until he paid for the land under his contract, unless Brown bought him out. Linn returned at once to Colorado, and three or four days thereafter began this action to obtain a re

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. § 253.*] Appeal from District Court, Mesa County; Sprigg Shackleford, Judge.

Action by Charles Linn against Addison F. Brown. From a judgment for plaintiff, defendant appeals. Affirmed. Griffith & Watson, for appellant. A. H. scission of the contract with Brown and a Davis and T. M. Morrow, for appellee.

reconveyance of the Mesa county land, after being informed by Brown that the latter had made no settlement with Jackson, and after offering to restore to Brown all that Linn had received, and being informed that Brown would do nothing until twelve men said he should.

The foregoing facts appear mostly from uncontradicted evidence, and from the preponderance of evidence where there was any conflict. The findings and judgment of the lower court were in favor of Linn, and were in line with the facts as above stated. Among the findings was the following: "The transaction, so far as the defendant was concerned, shows an utter lack of good faith and fair dealing on his part." Brown endeavored to make it appear by his evidence, and his answer alleges, that he had Jackson's consent to trade the land, and that he secured the surrender and cancellation of the contract, and settled with Jackson after the exchange of deeds and a few days before the action was brought, and that at the time of the cancellation he rented the land to Jackson under authority from Linn. The court, however, found that Brown did not settle with Jackson and procure the cancellation of the contract until about three months after the action was brought. Even if Brown did secure a settlement with Jackson a few days before the commencement of the action, it is not shown that Linn was informed of it and that he knew anything about it.

MUSSER, J. The appellant, Brown, who resided in Missouri, exchanged 100 acres of land situated in that state for 14 acres situated in Mesa county, in this state, belonging to appellee Linn, who resided thereon. Deeds were exchanged through Brown's sonin-law, who resided in Mesa county, and Linn delivered possession of the Colorado land to Brown. As a part of the transaction, Brown paid Linn $200 in cash, and assumed an incumbrance of $600 on the Mesa county land. The negotiations were begun several months before, when Brown was visiting in Mesa county, and continued after his return to Missouri by direct correspondence and through the son-in-law. The first proposal was not accepted by Linn. He made a counter proposition through the sonin-law, which was accepted by Brown, and the deeds were exchanged. In the course of the negotiations, Brown, in a letter to Linn, described the land, its location and improvements, and said that he had "a good abstract of title and deed and the land is paid for and clear," and in another letter, written a few days afterwards, Brown said he had sent a deed and abstract of perfect title to his son-in-law; that he would give full possession of the Missouri land on a certain date and wanted to know at once what Linn would do, so that the man on the land might have sufficient time to enable him to move conveniently before that date. Delay in the negotiations prevented the exchange of deeds [1] What Brown said in his letters could until a few days after the date mentioned by but produce the conviction that he was the Brown for delivery of actual possession. A absolute owner of the Missouri land in fee few days after the exchange of deeds, simple, and in possession thereof through a Brown came to Mesa county, and, upon in- tenant of some kind. These were not mere quiry from Linn, informed the latter that expressions of opinion with reference to the the Missouri land had been leased for the matter, but were statements of facts. Aside year to one Jackson for $90 and payment of from this, Brown's conduct and bearing in taxes. This appears to have been satisfac- the negotiations prior to and at the time of tory to Linn, and his only concern seems to the exchange of deeds, as shown by the genhave been as to the time when Jackson would eral tone of his letters, were the conduct pay him the rent. A short time after this, and bearing of an absolute proprietor whose Linn learned that Brown and Jackson had right to trade his land and to convey it abentered into a contract of purchase and sale solutely was unquestioned, and were such as of the land more than a year before. Upon would naturally produce the conviction that inquiry, Brown informed Linn, in substance, he was such owner and in possession of the that Jackson had forfeited the contract of land either personally or through a tenant. purchase and sale and was to surrender it, Such conduct and bearing was an affirma

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes