State ex rel. v. Ellison. the award was excessive, and would do so only in a glaring case of outrageous damages, and which all mankind at first blush must think so. It is now generally held, however, that the jury is not at liberty, unrestrained, to award by way of punitive damages any amount, regardless of how large it may be. While their verdict will not be set aside unless it is so large as to satisfy the court that it was not the result of an honest exercise of judgment, an award of exemplary damages is subject to revision by the court to the same extent as awards of compensatory damages, and will be set aside if it is grossly excessive or appears to be the result of passion or perjudice or improper sympathy. The court will not interfere except in extreme cases, however, and where it appears that an injustice has been done, and, perhaps, will proceed with more caution in such a case than where only compensatory damages are involved." [8 R. C. L. 680, 681.] Same Rule as Compensatory and Punitive Damages. IV. Coming back to the rule we state above, which is, to-wit, that an appellate court should sustain the action of a trial court in granting a new trial on the weight of the evidence below in all cases wherein the verdict would have been by an appellate court allowed to stand if such verdict has been in favor of the party to whom the new trial was granted, we come to the other point involved herein and above reserved, viz: Does this same rule apply, and do appellate courts hold toward the courts nisi the same benevolent and encouraging attitude in a case wherein a new trial is granted because the verdict awards excessive punitive damages? On principle we think this rule ought to, and does apply. While we have said but little on this point, that little sustains this view. In the case of McCloskey v. Publishing Co., 163 Mo. 1. c. 32, l. it was said: State ex rel. v. Ellison. "So we are of opinion that the ground of excessive damages, as a reason why defendant should be granted a new trial, is covered by the second, third and fourth grounds of defendant's motion for a new trial. "The second ground asserts that there was no evidence whatever authorizing the verdict for compensatory damage, and that the verdict should have been for nominal damages only. "The third ground asserts that there was no evidence whatever to support the verdict for punitive damages. "That is, in both these grounds it is in effect declared that the verdict for compensatory, as well also as for punitive damages, was excessive. It, therefore, logically follows that where the motion for a new trial asserts that the defendant was only entitled to nominal damages, that any damages over and above nominal damages are excessive. "So with the fourth ground, which asserts that the verdict was against the law and the evidence, it is clear that if the damages are excessive, the verdict was againt the evidence. "While it is true that appellate courts are very slow to grant new trials solely upon the ground that verdicts are excessive, it is also true, that they defer very largely to the action of the trial courts with respect to such matters, and that a judgment is rarely ever reversed upon the ground of the unwarranted exercise of the power of such courts under such circumstances. "But where it is manifest that a verdict is excessive, the court is remiss in its duty if it does not, upon motion, set it aside and grant a new trial, and this duty rests almost entirely within the province of the trial court, and this court will not interfere with the exercise of such discretion unless it appears to have been unreasonably or arbitrarily exercised." State ex re' v. Ellison. It We are forced to conclude that the views expressed by the learned Kansas City Court of Appeals in the excerpt quoted above from their opinion, are not in accord with what we held in the McCloskey case. would seem that there can in reason be no difference between a verdict which is not supported by the evidence as to the amount thereof, and one which is not supported by the evidence at all. It is manifest, at least, that the difference lies solely, in degree, and the same rule ought to control. A verdict is to be upheld or not, according as there is evidence or not to uphold it; surely, it will not be contended that absent any evidence, a verdict in any sum would be sustained by any court. On the contrary, a verdict of almost any size might be sustained if only there be sufficient evidence to support it. There may be evidence in the case of either much or little malice, or recklessness; all to be deduced from the quantum of the criminality, or from the insolence of manner and demeanor, or from the insulting words and acts of the tortfeasor, and the facts and circumstances of the case-the age, or sex, the health or lack of it, of the person wronged or injured; the weather prevailing and the time and place of the tort complained of; the persons present thereat, and the standing in affluence and influence of the doer of the tort. All these things, or any one or more of them, may be pertinent as evidence in the case. They are developed upon the trial in front of the trial judge, and he ought to be left by us as free to weigh them on the hearing of a motion for a new trial as he is to weigh any other fact or issue in the case? If any general criticism were pertinent it would seem to be that as a rule the learned nisi prius judges exercise their great and inherent powers of control to prevent injustice too little, rather than too much. It follows that in our opinion the trial court had the right to set this verdict aside on the ground that State ex rel. v. Ellison. the weight of the evidence in the whole case did not support the amount of punitive damages found by the triers of fact, and that our learned brethren of the Kansas City Court of Appeals applied to the determination of the correctness in that behalf of the action of the court nisi, an erroneous test. That test should have been whether on the whole case there was any substantial evidence to support the action of the court nisi. V. We are urged by relator's learned counsel to quash the judgment of the Kansas City Court of Appeals and render now and here final judgment in the case of H. C. Smith, appellant, v. Atchison, Topeka & Certiorari: Santa Fe Railway Co., respondent, 192 Mo. App. 210. Absent a statute so permitting and we have none- we have no earthly power to do this. We can undo what the Court of Appeals has done; we can state on the point of contrariety of decision the rule which in our opinion ought to govern that court upon another hearing, and we can send the record back to them to be heard anew by them (Majestic Mfg. Co. v. Reynolds, 168 S. W. 1072), but in the Kansas City Court of Appeals alone lies the jurisdiction to hear and to correctly and finally determine the case to which the instant proceeding is ancillary. Let the judgment of the Kansas City Court of Appeals in the case of Smith v. Atchison, Topeka & Santa Fe Railway Company be quashed and for naught held. All concur, except Bond, J., who dissents as to the result only. State ex rel. v. Ellison. THE STATE ex rel. DETROIT FIRE & MARINE INSURANCE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals. In Banc, June 2, 1916. 1. INSTRUCTION: Criminal Element in Civil Case. In an action on an insurance policy where the defense is that plaintiff set or caused the fire in order to defraud the defendant, an instruction telling the jury that, in order to find for defendant on that issue, they must look for proof of a more conclusive character than in ordinary civil cases, is erroneous. 2. Circumstantial Evidence: Preponderance: Inconsistent with Plaintiff's Innocence. In a suit on policies against an insurance company where the defense is that the insured set the fire, an instruction telling the jury that to warrant a finding on circumstantial evidence that the plaintiff burned or caused to be burned the property in question, "the circumstances must be proved to your satisfaction by a preponderance of the evidence, and when the circumstances are so established they must point to the said plaintiff and must be inconsistent with any other reasonable hypothesis;" and another instruction telling the jury that "the burden of proving by a greater weight of the believable evidence that plaintiff did set the fire that burned said property is on defendant; and you are further instructed that in civil suits (like this one), just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of property is innocent and the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case," introduced a criminal element into a civil case, and in effect required the proof of the circumstances to be beyond a reasonable doubt; and the Court of Appeals in holding said instructions were not erroneous, failed to follow the last previous rulings of this court in Rothschild v. Insurance Company, 62 Mo. 356; Gay v. Gillilan, 92 Mo. 250; Edwards v. Knapp, 97 Mo. 432; Dakan v. Chase & Son Merc. Co., 197 Mo. 238; and Smith v. Burrus, 106 1. c. 101. In civil cases the circumstances may be explicable on more than one reasonable hypothesis, and the jury may choose the more reasonable one; but in criminal cases the jury can act upon the hypothesis of guilt only when it is the only reasonable one. |