I concur in all of the opinion on rehearing excepting that portion with reference to the amount of damages to be awarded.
All members of the court are of the opinion that the presiding judge committed no reversible error during the course *Page 427 of the trial and that appellant is liable. The question now troubling the court is, how much respondent is entitled to recover. One justice insists that the jury's verdict, namely $35,000, should not be disturbed, — two justices insist that the jury's verdict is excessive and should be reduced to $25,000, — one justice maintains that the verdict in either of the above amounts is excessive and should be reduced to $20,000.
In view of the above situation the writer is of the opinion that the judgment should be reversed and the cause remanded with instructions to the trial court to impanel a qualified jury and limit the issue solely to the amount of damages to be awarded. (Yazoo Mississippi Valley R. Co. v. Scott, 108 Miss. 871,67 So. 491, Ann. Cas. 1917E, 880, L.R.A. 1915E, 239, and note to L.R.A.; Norfolk Southern R. Co. v. Ferebee,238 U.S. 269, 35 Sup. Ct. 781, 59 L. ed. 1303.) In view of the provisions of article 5, section 6, of the Constitution of Idaho, I am by no means convinced that when only two members of the court agree upon a like and definite sum, another determines upon a smaller sum, another upon a larger sum, and still another for reversal and resubmission upon the question of damages, that the legal effect thereof is that the verdict shall be and is $25,000. No definite amount is fixed by three members of the court. It is not the judgment of the justice who insists the verdict should stand at $35,000, neither is it the justice's judgment who insists that the verdict and judgment should be reduced to $20,000, and it is quite apparent it is not the writer's conclusion that the judgment should be reduced in any amount by the Supreme Court. The Constitution, article 5, section 6, provides:
"The Supreme Court shall consist of five justices, a majority of whom shall be necessary to make a quorum or pronounce a decision . . . ."
I cannot bring myself to believe that either the spirit or letter of the Constitution is being observed. In my opinion, in view of all the facts and circumstances surrounding and connected with the case, it is a proper case for a jury to *Page 428 fix the amount of damages and not the court. In none of the cases cited will it be found that a majority of the court disagreed as to the amount to which the verdict should be reduced.