concurring in part and dissenting in part.
I concur in much of the majority's decision. I join the majority’s decision to (1) affirm the judgment holding defendants Booker and Humphrey liable for actual damages and awarding $10,000 in punitive damages against Booker, (2) reverse the grant of judgment notwithstanding the verdict (jnov) to the extent that it set aside the award of $10,000 in punitive damages against Humphrey, (3) reverse the judgment awarding actual damages against defendant Lark and affirm the jnov in favor of Lark for punitive damages because of insufficient evidence. Finally, I agree that a remand for modification of the award of attorney’s fees is required.
However, I believe the award of actual damages reflects an improper attempt on the part of the jury to apportion compensatory or actual damages among the defendants and, accordingly, I dissent from the majority’s decision to affirm the award of actual damages against Booker and Humphrey. I would vacate the award of actual damages and remand the case to the magistrate for a new trial on the issue of actual damages only.
*309With respect to Instruction No. 7,1 agree that the failure to use the term “reckless disregard” was not plain error. At 305. As was noted by the majority panel opinion,
[b]y including in Instruction No. 7 the words “gross negligence,” defined as “a callous indifference or thoughtless disregard,” and “egregious failure to protect,” defined as “a flagrant or remarkably bad failure to protect,” the trial court sufficiently indicated to the jury the nature of conduct for which defendants could be held liable.
Thomas v. Booker, 762 F.2d 654, 657 (8th Cir.1985).
In addition, I would note, as did the majority panel opinion, that Instruction No. 7 improperly referred to the eighth amendment’s prohibition against cruel and unusual punishment and thus subjected plaintiff Thomas to an erroneous standard of proof. Id. at 658, citing Putnam v. Gerloff, 639 F.2d 415, 418 (8th Cir.1981). As noted by the majority panel opinion, 762 F.2d at 657, and the majority en banc, at 304 & n. 3, Instruction No. 7 was “virtually identical” to the instruction given and found not prejudicially erroneous by this court in Wade v. Haynes, 663 F.2d 778, 782 (8th Cir.1981), aff'd on other grounds sub nom. Smith v. Wade, 461 U.S. 30,103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). However, the plaintiff in Wade v. Haynes was a convicted prisoner; at the time of the incidents in question, Thomas was being held in the city jail as a pretrial detainee. The due process clause of the fourteenth amendment rather than the eighth amendment should have been relied upon to evaluate Thomas’ claim as a pretrial detainee. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979), citing Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51 L.Ed.2d 711 (1977). The relevant inquiry under the due process clause was whether the defendants’ treatment of Thomas amounted to punishment, Bell v. Wolfish, 444 U.S. at 535, 99 S.Ct. at 1872, and the jury should have been instructed accordingly. See Putnam v. Gerloff, 639 F.2d at 420. The magistrate should not have given the Wade v. Haynes instruction in the present case without appropriate modification. Because the jury found in favor of Thomas under the more demanding eighth amendment standard of proof, however, this error was harmless. See Thomas v. Booker, 762 F.2d at 658; Putnam v. Gerloff, 639 F.2d at 419 & n. 2 (plain error).
I agree with the majority opinion’s analysis of the magistrate’s rulings on the defendants’ motions for JNOV. At 305-06. When viewed in the light most favorable to Thomas, the evidence was sufficient to support the jury’s verdict against Booker and Humphrey for actual and punitive damages but insufficient to support the verdict against Lark for both actual and punitive damages.
However, the final jury verdict awarding actual damages ($3,000 against Booker, $1,000 against Humphrey and $1,000 against Lark) reflects an improper attempt on the part of the jury to apportion actual damages among the defendants. The initial verdict, as indicated on the verdict form returned in favor of Thomas and against Booker, awarded Thomas $5,000 in actual damages; the final verdict, as indicated on three verdict forms returned in favor of Thomas and against each defendant, awarded Thomas a total of $5,000 actual damages but erroneously apportioned the award among the three defendants.1 The *310injury or damage in the present case was indivisible, and defendants Booker and Humphrey were joint and severally liable for actual damages. See generally Restatement (Second) of Torts §§ 433, 433A & comment i, 433B (1965); cf. Smith v. Updegraff 744 F.2d 1354, 1365 (8th Cir.1984) (joint and several liability of co-conspirators); Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199, 1203 (8th Cir.1982) (“second collision”).
Given the jury’s final verdict and the dismissal of Lark on appeal, one can only speculate whether the jury intended to award Thomas $5,000 or perhaps only $4,000 in actual damages. For this reason, I would vacate the award of actual damages and remand for a new trial on the issue of actual damages only. In my view the issue of actual damages is sufficiently separate and distinct from the issues of liability for actual and punitive damages and the amount of punitive damages that, under the totality of the circumstances, a new trial on all the issues is not required.
. The incidence of confusing jury verdicts involving multiple defendants and actual and punitive damages might be reduced if the parties and the trial courts used more carefully drafted verdict forms. For example, Missouri Approved Jury Instructions § 36.12 (2d ed. 1969) suggested the following:
If you find the issues in favor of plaintiff and find that plaintiff is entitled to actual damages only, your verdict may be in the following form: We, the jury, find the issues in favor of plaintiff and against defendants (here insert the names of defendants against whom you find) and we assess plaintiffs damage at $_(stating the amount).
If you find for plaintiff and against one or more defendants and if you further find that plaintiff is also entitled to punitive damages, *310then your award of punitive damages shall be in the following form: We, the jury, find the issues in favor of plaintiff and we find that plaintiff is entitled to punitive damages against the following defendants in the following amounts:
(name of defendant) (amount of punitive damages assessed)
(name of defendant) (amount of punitive . damages assessed)
Missouri Approved Jury Instructions § 36.12 (3d ed. 1981) (footnotes omitted) suggested the following revised verdict form:
On the claim of plaintiff (state the name) for personal injuries against defendant (state the name of one defendant), we, the undersigned jurors, find in favor of: (state name of plaintiff or defendant).
On the claim of plaintiff (state the name) for personal injuries against defendant (state the name of the other defendant), we, the undersigned jurors, find in favor of: (state name of plaintiff or defendant).
Note: Complete the following paragraph only if one or more of the above findings is in favor of plaintiff (state the name).
We, the undersigned jurors, assess the damages of plaintiff (state the name) as follows: For actual damages $_ (stating the amount).
For punitive damages against defendant (state the name) $_(stating the amount or, if none, write the word, "none").
For punitive damages against defendant (state the name) $_(stating the amount or, if none, write the word, "none”).