OOLLINS, J.
Action for defamation of character, in which the plaintiff secured a verdict for $550. The defendant’s motion for a new trial was made upon the grounds mentioned in the second, fourth, fifth, and seventh subdivisions of Gf. S. 1894, § 5398. The order of the court on this motion was that it be granted unless within ten days after service of a copy all of the verdict in excess of $100 be remitted by plaintiff.
It is very clear from the condition therein that this order could not have been predicated upon any of the grounds mentioned, except the fourth, namely, excessive damages, appearing to have been given under the influence of passion or prejudice, and we must so consider the appeal. Counsel for defendant take the position that it is wholly within the discretion of the trial court to make an order of the nature of that appealed from; that the case comes directly within the rule laid down in Hicks v. Stone, 13 Minn. 398 (434), so often followed by us, and, as a consequence, [411]*411that the order should be affirmed. We are of the opinion that the doctrine of Hicks v. Stone has no application in a case of this character.
It is obvious, however, that some confusion has arisen out of what has been said in some of our'decisions. In Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, it was held that in an action in tort the objection that the damages are excessive or inadequate, as a ground of motion for a new trial, comes under subdivision 4, and not under subdivision 5, of G-. S. 1878, c. 66, § 253, as amended by Laws 1891, c. 80 (section 5398, subd. 4, supra). But in State v. Shevlin-Carpenter Co., 66 Minn. 217, 68 N. W. 973, this assertion was criticized, and it was said that
“The fourth subdivision has reference more particularly to cases in which there is no- rule for estimating the amount of damages, except that found in the discretion of the jury, as where the damages are for personal injury,” and, further, “The Nelson case has never been followed, and, in our opinion, should not be, even in cases where the ■ fourth subdivision more properly applies, to wit, cases where expert evidence as to value or amount of damages is incompetent.”
The statement in the Nelson case was inaccurate, because it included all actions in tort, and failed to distinguish between those in which there is a fixed rule by which the damages can be ascertained — such, for instance, as trespass upon real property (that case), or for the conversion of saw logs (the Carpenter case) — and actions wherein the damages cannot be liquidated or determined by fixed rules of law; that is, by expert evidence as to the amount of damages. For illustration, actions for alienation of affections or defamation of character. This distinction was not overlooked in one of our leading cases on this matter (Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87), wherein it was held, when speaking of subdivision 4, that, to warrant an order for a new trial upon the ground of excessive damages in an action for defamation of character, they must not be merely more than the court would have awarded if it had tried the case, but the amount awarded so greatly and grossly exceed what would be adequate, in the judgment of the court, that they cannot reason[412]*412ably be accounted for except upon the theory that they were awarded, not in a judicial frame of mind, but under the influence of passion (that is to say, of excited feeling, rather than sober judgment), or of prejudice, and with a state of mind partial to the successful party or unfair to the other. Said the court, at page 221:
“The damages must be so exorbitant as to shock the sense of the court, and satisfy it that, after making just allowance for difference of opinion among fair-minded men, they cannot be accounted for except upon the theory that in the particular case the proper fair-mindedness was wanting”;
a large number of cases being cited in support of the proposition.
The criticism found in State v. Shevlin-Carpenter Co. was wholly unnecessary to the decision, and we do not now approve it. The true rule is that in actions for defamation, and kindred cases in tort, the amount to be awarded is referred to the discretion of the jury, and the court will not ordinarily interfere unless the amount is so unreasonable and excessive as to be indicative of passion, prejudice, partiality, or corruption of the' jury. As the estimate of damages in cases of this character is peculiarily within the province of the jury, it is particularly incumbent upon the courts to forbear any encroachment upon the functions of the jury in this particular, save in strong cases of injustice. And this is practically what was said in Pratt v. Pioneer Press Co., supra, and again in the later case of Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 388, — both actions for defamation of character. There is no question, under the decisions of this state, of the right of the trial court to grant new trials for excessive damages appearing to have been given under the influence of passion and prejudice, in cases where the damages are not capable of ascertainment by any fixed legal rules; that is, when expert or opinion evidence as to the amount is not admissible. But, as said before, in this class of torts the rule of Hicks v. Stone, supra, is not applicable, although it is not to be overlooked (and the fact may have led to some misapprehension) that, as stated in some of the decisions, excessive or inadequate damages awarded by a jury, urged as a ground for a new trial,
[413]*413“Is but a branch of another more general ground, viz. that the verdict is contrary to the evidence; for it is evident that, if the damages be either excessive or too small, the verdict must be contrary to the evidence.”
In a proper case a trial court has this power, and it must follow that it may exercise it conditionally by imposing upon the successful party the option of accepting a new trial, or remitting such part of the damages as justice may require. We are aware, however, that the courts are not agreed upon this, and that in many it has been held that a grossly-excessive verdict cannot be cured by remittit damma. But this practice has grown to be a custom in this jurisdiction, and cannot be now disturbed. And this court has several times cut down verdicts in cases within the class to which this belongs because we regarded them as excessive. McCarthy v. Niskern, 22 Minn. 90; Mitchell v. Mitchell, 60 Minn. 12, 61 N. W. 682; Peterson v. Western Union Tel. Co., 75 Minn. 368, 77 N. W. 985.
We are now brought to consider whether, under the rule herein-before stated, and particularly that laid down at length in Pratt v.' Pioneer Press Co., supra, the trial court was justified in directing that a new trial be had unless the conditions imposed are accepted by the successful party, and in considering this question the situation is precisely as if a new trial had been ordered unconditionally ,a That a part of the verdict was reserved to the plaintiff by the order does not mitigate or cure the error, if any was committed. The inquiry is, were the damages awarded by the verdict so unreasonable and excessive as to appear to have been given under the influence of passion or prejudice,—
“So exorbitant as to shock the sense of the court, and satisfy it that, after making just allowance for difference of opinion among fair-minded men,”
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OOLLINS, J.
Action for defamation of character, in which the plaintiff secured a verdict for $550. The defendant’s motion for a new trial was made upon the grounds mentioned in the second, fourth, fifth, and seventh subdivisions of Gf. S. 1894, § 5398. The order of the court on this motion was that it be granted unless within ten days after service of a copy all of the verdict in excess of $100 be remitted by plaintiff.
It is very clear from the condition therein that this order could not have been predicated upon any of the grounds mentioned, except the fourth, namely, excessive damages, appearing to have been given under the influence of passion or prejudice, and we must so consider the appeal. Counsel for defendant take the position that it is wholly within the discretion of the trial court to make an order of the nature of that appealed from; that the case comes directly within the rule laid down in Hicks v. Stone, 13 Minn. 398 (434), so often followed by us, and, as a consequence, [411]*411that the order should be affirmed. We are of the opinion that the doctrine of Hicks v. Stone has no application in a case of this character.
It is obvious, however, that some confusion has arisen out of what has been said in some of our'decisions. In Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, it was held that in an action in tort the objection that the damages are excessive or inadequate, as a ground of motion for a new trial, comes under subdivision 4, and not under subdivision 5, of G-. S. 1878, c. 66, § 253, as amended by Laws 1891, c. 80 (section 5398, subd. 4, supra). But in State v. Shevlin-Carpenter Co., 66 Minn. 217, 68 N. W. 973, this assertion was criticized, and it was said that
“The fourth subdivision has reference more particularly to cases in which there is no- rule for estimating the amount of damages, except that found in the discretion of the jury, as where the damages are for personal injury,” and, further, “The Nelson case has never been followed, and, in our opinion, should not be, even in cases where the ■ fourth subdivision more properly applies, to wit, cases where expert evidence as to value or amount of damages is incompetent.”
The statement in the Nelson case was inaccurate, because it included all actions in tort, and failed to distinguish between those in which there is a fixed rule by which the damages can be ascertained — such, for instance, as trespass upon real property (that case), or for the conversion of saw logs (the Carpenter case) — and actions wherein the damages cannot be liquidated or determined by fixed rules of law; that is, by expert evidence as to the amount of damages. For illustration, actions for alienation of affections or defamation of character. This distinction was not overlooked in one of our leading cases on this matter (Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87), wherein it was held, when speaking of subdivision 4, that, to warrant an order for a new trial upon the ground of excessive damages in an action for defamation of character, they must not be merely more than the court would have awarded if it had tried the case, but the amount awarded so greatly and grossly exceed what would be adequate, in the judgment of the court, that they cannot reason[412]*412ably be accounted for except upon the theory that they were awarded, not in a judicial frame of mind, but under the influence of passion (that is to say, of excited feeling, rather than sober judgment), or of prejudice, and with a state of mind partial to the successful party or unfair to the other. Said the court, at page 221:
“The damages must be so exorbitant as to shock the sense of the court, and satisfy it that, after making just allowance for difference of opinion among fair-minded men, they cannot be accounted for except upon the theory that in the particular case the proper fair-mindedness was wanting”;
a large number of cases being cited in support of the proposition.
The criticism found in State v. Shevlin-Carpenter Co. was wholly unnecessary to the decision, and we do not now approve it. The true rule is that in actions for defamation, and kindred cases in tort, the amount to be awarded is referred to the discretion of the jury, and the court will not ordinarily interfere unless the amount is so unreasonable and excessive as to be indicative of passion, prejudice, partiality, or corruption of the' jury. As the estimate of damages in cases of this character is peculiarily within the province of the jury, it is particularly incumbent upon the courts to forbear any encroachment upon the functions of the jury in this particular, save in strong cases of injustice. And this is practically what was said in Pratt v. Pioneer Press Co., supra, and again in the later case of Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 388, — both actions for defamation of character. There is no question, under the decisions of this state, of the right of the trial court to grant new trials for excessive damages appearing to have been given under the influence of passion and prejudice, in cases where the damages are not capable of ascertainment by any fixed legal rules; that is, when expert or opinion evidence as to the amount is not admissible. But, as said before, in this class of torts the rule of Hicks v. Stone, supra, is not applicable, although it is not to be overlooked (and the fact may have led to some misapprehension) that, as stated in some of the decisions, excessive or inadequate damages awarded by a jury, urged as a ground for a new trial,
[413]*413“Is but a branch of another more general ground, viz. that the verdict is contrary to the evidence; for it is evident that, if the damages be either excessive or too small, the verdict must be contrary to the evidence.”
In a proper case a trial court has this power, and it must follow that it may exercise it conditionally by imposing upon the successful party the option of accepting a new trial, or remitting such part of the damages as justice may require. We are aware, however, that the courts are not agreed upon this, and that in many it has been held that a grossly-excessive verdict cannot be cured by remittit damma. But this practice has grown to be a custom in this jurisdiction, and cannot be now disturbed. And this court has several times cut down verdicts in cases within the class to which this belongs because we regarded them as excessive. McCarthy v. Niskern, 22 Minn. 90; Mitchell v. Mitchell, 60 Minn. 12, 61 N. W. 682; Peterson v. Western Union Tel. Co., 75 Minn. 368, 77 N. W. 985.
We are now brought to consider whether, under the rule herein-before stated, and particularly that laid down at length in Pratt v.' Pioneer Press Co., supra, the trial court was justified in directing that a new trial be had unless the conditions imposed are accepted by the successful party, and in considering this question the situation is precisely as if a new trial had been ordered unconditionally ,a That a part of the verdict was reserved to the plaintiff by the order does not mitigate or cure the error, if any was committed. The inquiry is, were the damages awarded by the verdict so unreasonable and excessive as to appear to have been given under the influence of passion or prejudice,—
“So exorbitant as to shock the sense of the court, and satisfy it that, after making just allowance for difference of opinion among fair-minded men,”
the verdict, as to amount, cannot be accounted for upon any other theory than that of passion or prejudice on the part of the jury? This question must be determined solely from the evidence in the case and the amount of the verdict. They must be compared, and if, from the evidence, it appears that the amount of the verdict is [414]*414so excessive as to indicate passion or prejudice, the order appealed from must be affirmed; otherwise, it must be reversed. No outside matters are to be considered, and we are to pass upon it on the record solely, and as an original question.
We cannot give weight to the fact that the court below saw the witnesses, listened to the testimony, had opportunity to observe the feeling, if any, that was exhibited at the trial between the parties, and could, perhaps, determine whether the action was brought to maintain the plaintiff’s character, or to satisfy a vindictive disposition and to spitefully punish because there was an opportunity. All these matters must be excluded when considering the evidence. It resolves itself into a question as to whether there was anything in the evidence which indicated that the jury rendered the verdict in the sum of $550 under the influence of passion or prejudice. In effect, the words alleged to have been spoken by the defendant of and concerning the plaintiff charged her with having whipped her husband, and thereby caused or hastened his death. Under the decisions of this court, they were clearly actionable per se. In their ordinary acceptation, they would naturally and presumably be understood as imputing a charge of the commission of a crime, — -a very serious one, also. The defendant admitted that, in substance, she uttered these words, but claimed that she simply repeated what had been told her by another woman, to whom she gave credit at the time; but this was no justification or defense for her utterances. The plaintiff and the defendant were sisters-in-law, — the former a widow. There had been a quarrel between them over a trespass by cows more than five years before the trial, during which they exchanged very obnoxious language of and concerning each other. For five years prior to the speaking of the words complained of, they had not spoken to each other, and, so far as the record shows, perfect peace prevailed. There was no immediate provocation or excuse for defendant’s making the charge set forth in the complaint. Possibly the whole affair was nothing but a quarrel between relatives, in which neither party exhibited any sense of decency, but not even that condition of things appears from the [415]*415testimony. The record discloses that, without excuse and deliberately, the defendant charged plaintiff with the commission of a crime, and the jury assessed the damages at $550; and there is nothing in the evidence which shows, upon comparison thereof with the verdict, that the amount was at all excessive, or was arrived at through passion or prejudice on the part of the jury. Taking judicial notice of verdicts heretofore rendered in similar cases, it would seem to be fair and just in amount. It certainly was not unusually large.
The order appealed from is reversed, with directions that, when remanded, judgment be entered on the verdict.