concurring and dissenting:
I join the majority in its holding that the damages are inadequate as a matter of law and therefore that a new trial is required. I do not agree, however, that the case should be remanded for trial on damages only, for that is not what the plaintiffs have requested in their appeal. They have asked for a new trial on all issues.
The defendants did not appeal from the jury verdict and judgment entered in this case. At that time the post-trial proceedings were such that the plaintiffs were asking for a new trial on all issues. The trial court denied that motion for a new trial on all issues and let the verdict stand. Accordingly, when the plaintiffs appealed, the defendants were rightfully under the impression that plaintiffs would again be asking for a new trial on all issues, and not just on the damages issue. That probably is why the defendants did not file a cross-appeal; they reasoned that if this Court granted the relief requested the most that could happen would be a new trial on all issues.
However, this Court has now on appeal, held in essence that because the defendants did not appeal from the verdict and judgment on liability, that they are now stuck with that judgment. In the normal case this should be the result. But it should not be the result where the plaintiffs have at all times proceeded with a request for a new trial on all issues. It is unfair to the defendants to now saddle them with a judgment on liability and leaving them at the new trial to defend on the issue of damages only.
I would, therefore, order a new trial on all issues - liability and damages.