dissenting:
I dissent. Instruction no. 35 (set out in full in the majority opinion) is a faulty instruction that should have never been given. It is incomplete, allows for speculation by the jurors, allowed counsel for the State to argue improperly thereon, and it abrogated the joint and several rule of liability.
The statute in effect at the time of this case (it has since been amended) allowing joint and several liability provided:
“(1) Whenever the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each party is jointly and severably liable for the amount awarded to the claimant but has the right of contribution from any other party against whom recovery is allowed. Contribution shall be proportional to the negligence of the parties against whom recovery is allowed.”
Section 27-1-703(1), MCA (1978).
When the foregoing statute is compared to the instruction given by the District Court, it is apparent that the instruction was defectively incomplete. First, the instruction singled out the effect of a judgment as to one of the defendants, State of Montana, although there were two *429defendants in this action. A proper instruction would have told the jury that each party is jointly and severally liable, and that there is a right of contribution in favor of one party who pays more than his proper share of the judgment. One might argue in this case that such a full instruction would allow the jury to speculate as to whether the State of Montana could recover any contribution from Eder, but that is no more speculative than the instruction given, which allowed the jury to speculate that Eder could not pay any part of the judgment. The majority recognize these defects, because their suggested instruction does not single out one defendant over another.
The given instruction allowed the jury to speculate as to matters outside the evidence in this case, notably whether after a judgment was rendered, the defendant State of Montana would have to pay the whole judgment because Eder himself was not responsible for any amount. Attorneys for the State strove to get that implication across to the jury.
It may be a salutary thing that juries be informed as to the effect of their verdicts; in any event, they should be fully informed and the information given should be neutral as to the parties involved.
Based on the given instructions, the attorneys for the State engaged in an improper and dishonorable closing argument. By the argument, the jury’s attention was drawn away from the issues in the case, essentially here as to whether the State of Montana was negligent in the construction and maintenance of the highway so as to be a proximate cause of plaintiffs injuries. The jury was left instead to speculate on the fairness or equity of the joint and several liability rule. I am amazed that the majority tolerate that kind of argument. The instruction permitted the State’s attorneys to appeal to the prejudices or sympathies of the jury, either prejudice against Eder, or sympathy for the State even if it had been negligent in causing injuries to the plaintiff. It is a cardinal principle of trial law that the trier of fact must confine his or its decision to the evidence in the record. Whether or not either defendant could pay the judgment was outside the record. Whether the State of Montana could recover contribution from Eder was outside the record. Such matters had no place in the jury’s consideration of the facts in this case, yet those matters are exactly what the argument of the State attorneys invited.
Because of the faulty instruction and the improper argument based upon it, I would reverse and remand for a new trial.
JUSTICE HUNT, concurs in the foregoing dissent of JUSTICE SHEEHY.