(dissenting from second paragraph of syllabus): Conceding there is a plausible argument and substantial authority to support the'majority opinion of the court, it is also true that persuasive argument and respectable authority may be -found to support any one of several judgments which might have been rendered by the court upon this verdict.
Some authorities hold that the only judgment that can be rendered upon such a verdict is a several judgment against each defendant for the amount for which he is found liable. In San Antonio & A. P. Ry. Co. v. Bowles, 30 S. W. (Tex.) 727, being an action by the wife and child of a brakeman killed by the negligence of two defendant railroad companies, a verdict against both defendants in the sum of $10,000, to which is added that $5,000 in favor of the wife and $5,000 in favor of the child and directing that $5,000 of the amount should be paid by each of the defendants, was held sufficiently definite to sustain a judgment making each company separately liable for $5,000, but did not sustain a judgment for $10,000.
In Rhame v. City of Sumter, 101 S. E. (S. C.) 832, being an action against the city and another for damages for personal injuries, the jury returned a verdict of $425 against the city and $425 against the other defendant. The court said:
“The jury, by their verdict, found that the respondent had been damaged in the sum of $850; that each defendant should pay $425. While the verdict is unusual, no effort was made to correct it before the jury had separated. . . . The verdict as it stands is against each defendant for $425. The payment by one will not satisfy the judgment as to the other.”
In Hooks v. Vet, 192 Fed. 314, being an action for damages against several defendants, the verdict was: “We, the jury, find for the plaintiff as against B. A. Hooks and A. A. Cowart the sum of $1,000- each, and against (three other defendants) the sum of $100 each.” Several judgments were rendered in accordance with the verdict. B. A. Hooks appealed, claiming that a several judgment could not be rendered in such a case. The circuit court of appeals, ,5th circuit, affirmed the judgment for the reason that if the assessment of damages was erroneous the error was favorable to the appellant and he could not complain.
In 38 Cyc. 1883, the rule is thus laid down:
“In actions for tort, however, the jury may find in favor of one and against other defendants, and in such actions it is error for the court to refuse to submit a form of verdiet in favor of one defendant and against another, and *759where joint tort-feasor are sued in the same action, separate verdicts for different amounts may be awarded against them and punitive damages allowed against one and not against the.other.”
Under this line of authorities the judgment against appellant in this case would have been for $500 instead of $4,000.
Another line of authorities is to the effect that when compensatory damages only are recoverable the verdict should be for the amount for which the most culpable is liable, and in case a several verdict is rendered the irregularity may be cured by taking judgment against all defendants found guilty for the largest sum found against any one of them. In Crawford v. Morris, 5 Grat. (Va.) 90, it is said: “In a joint action of trespass against several who plead jointly, . . . the jury should assess against all who are found guilty the amount they think the most guilty should pay.” (Syl. ¶¶ 4, 7; see, also, Halsey v. Woodruff, 9 Pick. 555; Dougherty v. Dorsey, 7 Ky. [4 Bibb.] 207; Sodousky v. McGee, 27 Ky. [4 J. J. Marsh.] 267; Beale v. Finch, 11 N. Y. 128.)
Under this line of authorities a judgment in this case would have been rendered against both defendants for $3,500.
Another line of authorities is to the effect that the irregularity in the verdict may be cured by the plaintiff entering a nolle prosequi as to all the defendants but one, and taking judgment against him only, and that he may elect to take his best damages which in this, case would have been $3,500, against Waldner, and dismissed as to appellant, or if the plaintiff should have regarded the one against whom he had the largest damages as being insolvent, under this rule he might have elected to take against the city and dismissed as to the other, in which event the judgment would have been against appellant for $500. This line of authorities proceeds upon the theory that the liability of the defendants is both joint and several; that the plaintiff could have sued any one of them and not the others, and that even after the verdict he might dismiss as to one or more and take his judgment against the other. In 2 Sutherland on Damages, 4th ed. § 463, the rule is laid down thus:
“It is irregular, in such a case, on finding those jointly charged jointly guilty to assess damages against them separately even though they severed in pleading. Notwithstanding this rule juries have frequently severed the damages, aiming, no doubt, to apportion them according to the culpability of the respective defendants; and in Kentucky, Georgia (in actions sounding in trespass) and South Carolina juries are permitted, in their discretion, to do so; elsewhere it is irregular; but the irregularity may be cured by the plaintiff *760entering a nolle proseqid as to all the defendants but one, and taking judgment against him only; and he may elect to enter judgment for the best damages; or, according to some cases, the plaintiff may elect to enter judgment, de melioribus damnis, against all the defendants found jointly guilty. ... A several verdict cannot be cured by reducing it to one-half the amount and charging it to a joint verdict.”
In 25 Standard Proc. 966, the rule is thus stated:
“In an action against joint tort-feasors, the jury must ordinarily assess the damages against all the defendants found guilty in a lump sum. If the jury illegally apportion the damages between the defendants and they are not directed to, and do not correct their verdict, the verdict must be set aside and a new trial awarded, unless the irregularity is cured in some way, as by the plaintiff taking judgment against one of the defendants in the amount assessed against him, and entering a nolle prosequi as to the others, or, according to other authorities, by taking judgment against all the defendants found guilty jointly, for the largest amount assessed against any of them. Where the jury find the amount of damages to which the plaintiff is entitled, and then apportion the amount assessed among the defendants found guilty, some authorities treat the apportionment of damages as surplusage, and render judgment against all for the total damages awarded.”
In Railway & Light Co. v. Trawick, 118 Tenn. 273, 10 L. R. A., n. s., 191, 121 A. S. R. 996; 12 Ann. Cas. 532, being a suit for damages for personal injury against the Railway & Light Company and the city, the jury returned the verdict:
“They found the ■ issues in favor of the plaintiff and by reason of the premises assess his damages in the sum of 17,250; $7,000 of this amount the jury awarded to the plaintiff, A. M. Trawick, and against the Nashville Railway & Light Company, and the costs, for which let fi. fa. issue. And they’ find for the plaintiff and against the defendant, Mayor and City Council of Nashville, in the sum of $250 and costs, for which let fi. fa. issue.” (p. 276.)
The plaintiff moved to dismiss as to the city, and judgment was rendered by the court against the Railway & Light*^ Company for $7,250. The supreme court held this to be a proper procedure except the judgment should be only for the larger sum and modified the judgment so that it would read “$7,000 against the Railway & Light Co.” This case states the rules as followed-by. different courts and sets out the authorities in support of them in substance as follows:
That such verdicts are irregular and erroneous. In regard to cases of this character there appears to be four distinct lines of procedure laid down by the authorities as follows:
The first class holds that the verdict should be set aside and a new trial awarded. The second treats the attempt of the jury to apportion the damages as mere surplusage, and the plaintiff may *761take judgment against all for the total damages awarded. A third holds that the plaintiff may elect his best damage and enter judgment for this sum against all the defendants found guilty jointly, and the fourth class — said to contain the greater weight of authority — holds that the plaintiff may select which of the defendants he will take judgment against, and may dismiss as to. the others and have his judgment against this one and the amount the jury awarded against him, and that this cures the irregularity in the verdict awarding several damages. This fourth theory was followed in the case cited.
In Schoat v. Mariott, 194 N. Y. Supp. 849, the jury found for the plaintiff for $500, and that each defendant should pay one-half thereof. The court struck out the words “that each defendant should pay one-half thereof” and rendered a joint judgment. This was approved by the appellate court, but in doing so they say the case is very different from one in which the words sought to be stricken out as surplusage might be construed to impeach or modify the verdict as finally allowed to stand. (Citing Railway & Light Co. v. Trawick, supra.)
In Caruthers’ History of a Lawsuit, 4th ed., § 34, p. 295:
“If two or more persons be jointly sued for a trespass the verdict may be against all for one sum as damages or it may be against each separately for distinct and different sums, and judgments may be entered thereon accordingly. There can be but one satisfaction, however, in favor of the plaintiff, and if he collect either one of the sums so assessed, it will bar his right to collect the others except as to costs. If the several assessments vary in amount the plaintiff may elect to take the larger sum, or if the defendants are not all solvent, he may elect to proceed against the solvent party, and so it seems if there be several assessments, the suit being against all jointly, the plaintiff may elect which sum he will, and remitting the others, enter judgment for that sum against all.”
So general did this rule become for curing defects in judgments ■of this character, that the term “de melioribus damnis” became commonly applied to it, literally “of or for the better damages,” a term used in practice to denote the electi@n by the plaintiff against which of several defendants (where the damages have been assessed separately) he will take judgment.
“Black L. D. [quot Knickerbacker v. Colver, 8 Cow. (N. Y.) 111, 112.] See, also, Clissold v. Machell, 26 U. C. Q. B. 422, 327, (where the court said: ‘It is laid down in Mayne on Damages, at page 330, where damages are assessed severally instead of jointly *762judgment will be reversed; but the plaintiff may cure it by taking judgment de melioribus damnis against one and entering up a nolle prosequi against the other and this whether they have joined or severed in pleading’).” (Note, 18 C. J. 481.)
It may be noted also that the rule of treating the attempted apportionment of the damages as ^surplusage, relied upon in the majority opinion of the court, is not uniform. In Whitaker v. Tatem, 48 Conn. 520, a verdict that plaintiff recover a judgment against T. and C., $100 to be divided as follows: against T., $25; against C., $75, was held not to be a legal verdict and the apportionment cannot be taken as surplusage. In Rathbone v. Detroit United Railway, 187 Mich. 586, 154 N. W. 143, it was held in a passenger’s action for personal injuries brought against a street railway and a construction company, with whose train the street car had collided, a verdict for plaintiff for $.10,000, $6,000 against the railway and $4,000 against the construction company, was defective and did not sustain a joint judgment for the total recovery against both defendants since the jury cannot apportion the damages against joint tort-feasors and such apportionment was not mere surplusage which might be disregarded.
In the opinion the court said:
“Had the plaintiff chosen to have the judgment entered in accordance with the terms of the verdict rendered (and the entry of any other judgment was wholly unwarranted), a different question would be presented and under the-authority cited it may be held that the appellant had no cause of complaint because in any event, the jury had found it guilty and assessed the damages-against it at the sum of $6,000. That, however, was not done and we are now dealing with the judgment against the appellant for $10,000, when the verdict of the jury as to it was that it should be condemned in the sum of $6,000. It. seems to me that common sense, as well as law, forbids such a result.” (p. 598.)
In this case the court reversed the judgment and granted a new trial.
In City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25, being' an action against the city, and its police officer for personal injury, the jury found for the plaintiff and against the city for $50 and against the officer for $50. It was held that the court’s action in rendering judgment on the verdict for $100 against both defendants was reversible error, and further held that is was a change, not only of the form, but of the very substance of the verdict in respect to-the liability of the defendants.
*763In Glore v. Akin, 131 Ga. 481, 62 S. E. 580, being a suit for damages for malicious prosecution, a jury returned the following verdict: “We, the jury, find for the plaintiff against the defendants Glore and Walters, $300, to be equally divided between them.” (p. 482.) It was held upon appeal that this verdict was not legal; that the words attempting to apportion went to the substance of the verdict and not to its form, and that the verdict could not be cured by plaintiff reducing the amount to $150 and taking judgment against both for that sum.
So it will be seen from the authorities as a whole, that upon this verdict the court might have rendered any one of several judgments; that is to say, it might have rendered judgment upon the verdict, which would have been a $500 judgment against appellant; the court might have rendered judgment against both defendants for the best damages, which would have been a judgment against appellant for $3,500; the court might have required the plaintiff to elect to take judgment for his best damages, or that a new trial be granted (and this plan appears to be supported by the greater number of authorities), and had plaintiff then elected to take judgment against the other defendant, the case would have been dismissed as to appellant and there would have been no judgment against it, or the court could have done what it did do, treat the attempted apportionment as surplusage, render judgment against all the defendants for the full amount, in which event there is a $4,000 judgment against appellant.
Except those few authorities which treat the attempted apportionment as surplusage, all of the other authorities are to the effect that a new trial should be granted, or that a new trial should be granted unless the irregularity in the verdict is cured by some one of the methods pointed out.
It is our firm conviction that a verdict which the jury is not authorized to bring in, and which is so irregular that a court might render any one of four judgments upon it, and that they would affect this appellant, being respectively, a judgment for defendant; a judgment against this defendant for $500; a judgment against it for $3,500; or a judgment against it for $4,000, is so irregular and uncertain as not to form the proper basis for a judgment, and that a new, trial should have been granted.
Johnston, C. J., Hopkins, J., join in this dissent.