Rindlisbaker v. Wilson

McFADDEN, Justice

(concurring in part and dissenting in part).

I concur in the majority opinion as written, except insofar as it remands the case to the trial court for its determination of the prejudicial effect of the improperly admitted evidence. It is my conclusion that the case should be remanded to the trial court for a new trial solely on the issue of damages to be awarded to respondent F. Clair Rindlisbaker.

The majority opinion holds that the evidence adduced by respondent concerning the proposed winter range cattle operation was too speculative to be admissible as proof of loss of future earnings. After that determination is made, it is my conclusion that it is the obligation of this court to make the determination as to whether the admission into evidence of this testimony was prejudicial or not, and that remanding this issue back to the trial court for determination is an abdication of the responsibility of this court.

In this case the jury returned a general verdict insofar as respondent F. Clair Rindlisbaker is concerned and for a trial court to attempt to determine the effect that this improperly admitted evidence had on the jury and its verdict would be an exercise in futility. When a general verdict is returned it is impossible to later evaluate the effect any particular bit of evidence could have on the ultimate amount of damages found by such jury. The admission into evidence of this testimony was either prejudicial error or harmless error, and that decision is to be made by this court.

This problem is not related to the question of the granting of a new trial condi *763 tioned upon the remission of a sum which the trial court has determined to be excessive in that the record before the trial court can only sustain a certain amount to be awarded as damages. See, Checketts v. Bowman, 70 Idaho 463 , 220 P.2d 682 (1950), wherein this court stated:

“However, in a case such as this, where no other ground for new trial is found than that the evidence does not support the amount of the verdict, and it does not appear to the trial judge that the amount was influenced by passion or prejudice, or other irregularity, which may be avoided on a new trial, then he should go further and condition the new trial on a refusal of the prevailing party to remit that part of the verdict which in his judgment is excessive.” 70 Idaho at 467, 468 , 220 P.2d at 684 .

Blaine v. Byers, 91 Idaho 665 , 429 P.2d 397 (1967); Bratton v. Slininger, 93 Idaho 248 , 460 P.2d 383 (1969). And this is not the type of case where a judgment contains separable items, some of which are proper and some improper, in which it would be proper to permit a party in whose favor a judgment has been returned to avoid the granting of a new trial on account of error affecting only a part thereof, by entering a remittitur as to the erroneous part. See, Annot. 135 A.L.R. 1186 (1941).

The jury in assessing the damages to be awarded respondent F. Clair Rindlisbaker had numerous elements to evaluate, i. e., medical expense, past and future, pain and suffering, past and future, loss of earnings, past and future, life expectancy and other items of damages generally accepted in cases of this nature. These items the jury considered in arriving at its verdict in his favor are impossible to itemize when there is a general verdict rendered. There is no way the trial court, or this court, could evaluate the effect, if any, of the improperly admitted evidence on the jury when it considered the issue as to Rindlisbaker’s damages for personal injury. For that reason it is my conclusion that the error in admitting the testimony as to prospective earnings from the proposed winter range cattle operation was prejudicial to the appellant in this case and a new trial should be granted on the issue of damages suffered by respondent F. Clair Rindlisbaker. Valley Transp. System v. Reinartz, 67 Ariz. 380 , 197 P.2d 269 (1948),; McAlister v. Carl, 233 Md. 446 , 197 A.2d 140 (1964).