(dissenting).
I dissent, respectfully suggesting that the defenses enumerated in the main opinion in its support are not consonant with the very rule it lifts from the Torts Restatement, which requires, for recovery of compensatory damages, at least a certain degree of certainty of proof.
The main opinion suggests that “the appellant was not very helpful” in showing the monetary extent of his loss and that “he offered neither independent opinions as to the values nor an itemization as to the cost of repairing the various parts, except that a new spde would cost approximately *173$30 or $40, by which the court could test the validity of his opinions,” and that “his credibility probably suffered somewhat in the view of the court from the facts of self-interest, vagueness, and the improbability inherent in his testimony” to the effect that he couldn’t get repair money to continue .a business netting $1000 per month. In .addition, suggests the main opinion, “the trial court, as trier of the fact, was justified in not accepting as true, though uncontra-dicted, his evidence as to his damages for loss of use of the vehicle.” With all these objections to the testimony, the main opinion nevertheless sends the case back for another trial.
Add to what seems to be most self-serving testimony the fact that defendant made no claim until sued 14 months after the accident, when he had not repaired his truck, tempts one to believe that the trial court may have overindulged itself by awarding even $5 damages. What may be worse, it seems to me, is that in sending the case back for a new trial, the defendant is given two whacks at his claim, and he virtually is told how to prove his damages the next time, a job which he so effectively neglected or could not accomplish before.
Nor, in may opinion, is the concurrence • of Mr. Justice CROCKETT sound. He as- • signs reasons, as does the main opinion, why defendant should lose, only to say he should be given another chance to try his case. He must have assumed that this case was ^decided on some kind of technicality rather than on the merits when he says “courts must be more interested in seeing that justice is done than in applying technical rules of procedure between the parties.” Such philosophy is dandy for the defendant here, but hardly convincing either to plaintiff, this writer or the trial judge, who may have felt that he, too, was interested in seeing that justice was done rather than in applying technical rules of procedure, — and that he was seeing to it that justice was done in this case.
At the expense of being dubbed the proverbial Jim with whom all were out of step, I can neither agree with the opinion of Mr. Justice WORTHEN, except that portion which is in disagreement with Mr. Chief Justice McDONOUGIi and Mr. Justice CROCKETT, disagreeing with him, of course, as to that portion which disagrees with Mr. Justice HENRIOD. ’ Mr. Justice WORTHEN quotes some oi defendant’s testimony which, it is suggested, is lifted out of context, observing that “In my opinion plaintiff’s counsel, on cross examination elicited testimony; sufficient to support a judgment in defendants favor .in excess of nominal damagesij Such statement can mean but one thing: ’.That-the trial judge had to believe such testimony. If taken in context, such testimony, along with such absurd representations that defendant could not get his truck repaired at a cost of not more than $500, when he was an expert mechanic, while he was losing $1,000 a month because of the lack of repairs, and *174that the truck was' still unrepaired after .14 months, is no more worthy of belief, a part of his testimony being- so ridiculous as ■to justify any reasonable person in discounting it all.
Also I must take issue with the following statement of Mr. Justice WORTHEN: "Unless this court is ready to say that the trial judge, in face of the testimony just referred to had the case been tried to a jury, could have instructed the jury that defendant was not entitled to any compen-sable damages because they could not believe defendant’s testimony due to its uncertainty, but should bring in a verdict of nominal damages in the amount of $5.00, then there is no basis for hesitancy in reversing the case and awarding defendant his costs.”
The statement indulges in the unwarranted-assumptions that: (1) The testimony quoted was the only testimony and evidence that could be canvassed in arriving at a decision; (2) that the trial court should not have been allowed to be the fact finder in this case; (3) that there was no competent evidence or the lack of it to justify the trial court’s decision, as viewed through the eyes of a reasonable trial court; (4) that the trial court arbitrarily and capriciously weighed, or was incapable of weighing the evidence; and (5) the trial court had no business taking into account the demeanor of the witnesses, etc.
Let it be remembered that the trial court was the jury in this case and it does no good to inquire as to what the trial court could, should, might, may or ought to have instructed the jury had there been one, and hence the test he puts is not a correct one. This case appears to have been one where credibility played an important role, and had there been a jury I am convinced the trial court would not have instructed it as Mr. Justice WORTHEN would have us believe he must have done, since credibility being a matter for the trier of the facts, it would have been a matter for the jury, and not the trial court, on controverted evidence or that kind of evidence that is subject to more than one interpretation.
Again I believe Mr. Justice WORTHEN to be in error when he would send this case back for a new trial because “one or both of the attorneys should have asked to reopen to offer additional testimony”, and the court did not require them to bring in more evidence. Who are we to say what the attorneys should or should not have done. It may be that both attorneys felt their chances were better by remaining silent, and it is not for the appellate tribunal to insist that they should have spoken-Mr. Justice WORTHEN attempts to support his thesis by quoting Kirkham v. Spencer, which, he says, “sustained the action of the trial court * * * in setting aside the respective rests of the parties, in order to give the respective parties an opportunity-to present further evidence upon two points-. * * Sustaining the trial court in reopening a case is a far cry from reversing a trial court for not reopening, making it quite obvious that Kirkham v. Spencer is iru no respect pertinent or controlling here.
Many times we have said that if there is; any substantial evidence or lack of it which will support the trial court’s decision, we. *175will affirm him. Many times we have said that we will affirm the trial court if he has not acted unreasonably, arbitrarily or capriciously. To be consistent we must say, in reversing this case, that the trial court’s decision was the result of unreasonableness, arbitrariness or capriciousness. How one can be arbitrary and capricious in failing to find a definite amount of damages, when he has nothing to deal with except indefiniteness, vagueness and evasion, is difficult for me to understand, and having only before him what the parties presented with full opportunity to have presented anything and everything they desired, it seems that a trial court should not be compelled to act as nursemaid to a party who either won’t or can’t present any better case than did the •defendant in this instance.