delivered the opinion of the court.

Action was brought by plaintiff to recover damages for the alleged malicious prosecution of charges of insanity against him by defendants. Verdict was rendered for plaintiff in the sum of $4,500 and judgment entered accordingly. Motion for a new trial was made, upon which the court made an order granting a new trial unless plaintiff would, within fifteen days thereafter, remit fifty per cent of the damages for which judgment was given. Plaintiff declined to comply with the condition and appealed from the order granting a new trial. The specifications of error raise only the question 'as to whether or not the court erred in granting a new trial upon the condition mentioned.

The rule has been established in this state by several £1] decisions that the trial court, in the exercise of its discretion, may make a conditional order of this character when application for new trial is based upon excessive damages appearing to have been given under the influence of passion or prejudice. (Chicago Title & Trust Co. v. O’Marr, 25 Mont. 242, 64 Pac. 506; State ex rel. Cohn v. District Court, 38 Mont. 119, 99 Pac. 139; John v. Northern Pac. Ry. Co., 42 Mont. 18, 32 L. R. A. (n. s.) 85, 111 Pac. 632; Forquer v. North, 42 Mont. 272, 112 Pac. 439; Flaherty v. Butte El. Ry. *219Co., 43 Mont. 141, 115 Pac. 40.) Inasmuch as this is a matter of discretion, the action of the trial court will not be reversed unless it appears that such discretion has been abused.

The evidence shows that in July, 1911, plaintiff became [2] violently insane, being afflicted.with the form of insanity known as paresis, and was committed to the insane asylum at Warm Springs. After being confined in the asylum for about two years, plaintiff was released and returned to his home county. Shortly after plaintiff’s return, defendants filed petition alleging, among other things, that he was insane and unsafe to be at large, and praying for his arrest and for adjudication as to his sanity. The evidence as to probable cause for filing this petition was decidedly in conflict, making that a question of fact for the jury. Plaintiff was not imprisoned upon the arrest but left in the care of his brother-in-law, at whose home he stayed, with freedom to come and •go as he pleased. The only actual damages proven were the sum of $125, the balance of the verdict being given in a lump sum for damages to feelings and reputation and by way of punishment. We have carefully reviewed the evidence in this case and cannot say that the trial court abused its discretion in granting motion for new trial upon the condition specified.

The order granting new trial is affirmed and the cause remanded for further proceedings.

Affirmed.