dissenting:
Respectfully, I dissent. I believe that I am abundantly supported both by reason and by law in my firm conviction that, in a case such as this, the right to grant a new trial solely on “the single issue of damages” should be exercised with great caution, only where it appears clearly that the issues are wholly separate and distinct, and only where it is unmistakably clear that a new trial on the single issue can not prejudice the right of either party to a fair jury trial on every issue normally submitted to a jury for decision.
The power and duty of a court, under the Court’s holding in this case, to limit the new trial to “the single issue of damages” would seem to impose upon a court in a different situation a like power and duty to direct a new trial on the single issue of liability in a case where the court would be required to uphold the award of damages in accordance with our well settled rule that, in a case such as this in which damages are indeterminate in character, “the decision of the jury upon the amount is generally conclusive, unless it is so large or small, as to induce the belief that the jury was influenced by passion, partiality, corruption, or prejudice or misled by some mistaken view of the case.” (Italics supplied.) Collins v. Skaggs, 110 W. Va. 518, pt. 2 syl., 159 S. E. 515; Poe v. Pittman, 150 W. Va. 179, 192-93, 144 S. E. 2d 671, 680. The power and duty of a court to limit a new trial to “the single issue of damages,” whatever that power and duty may be, must in reason, logic, justice and common sense, apply alike whether the verdict is inadequate in amount or excessive in amount. In my judgment, the record in this case furnishes as much reason for limiting the new trial to the single issue of liability as to the single issue of damages; but my firm view is that the new trial should not be limited solely to either of the two issues.
R.C.P. 59 (a), referred to in the syllabus of this case, provides that a new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury “for any of the reasons for which new trials have heretofore been granted *669in actions at law; * * We should disabuse our minds of any notion that this rule creates new law; or that it enlarges the preexisting powers of a court; or that it places any limitation on the solemn duty of a court, upon granting a new trial, not to limit or abridge the constitutional right of both parties to a jury trial and to a fair trial. The language of the rule here in question, and the comments included thereunder as a part of the Reporters’ Original Note, clearly discloses that the rule does not change or enlarge the power or restrict the duty of a court under the former practice. My view is that the decision in the present case is not sustained or warranted by any apt precedent among the prior decisions of this Court made either before or since the promulgation of the Rules of Civil Procedure.
The opinion relies upon Richmond v. Campbell, 148 W. Va. 595, 136 S. E. 2d 877 and Hall v. Groves, 151 W. Va. 449, 153 S. E. 2d 165. Neither of those cases is a justifiable precedent for the majority opinion in the present case, because, in both of those cases, the issue of liability and “the issue of damages” clearly were distinctly separable.
In the Campbell case, the Court stated (148 W. Va. at 598, 136 S. E. 2d at 879): “It is conceded by the defendant that the question of liability is not involved in this appeal.” The opinion in the Hall case states (151 W. Va. at 451, 153 S. E. 2d at 167) that the defendant, “suddenly and without any warning, drove the automobile off a public highway, across a sidewalk and into a nearby lawn and then back upon the highway and upon and against a three foot concrete abutment * * *”, as a result of which the plaintiff, a guest passenger, was injured. The Court also stated in the opinion (151 W. Va. at 456, 153 S. E. 2d at 169): “Under the undisputed evidence disclosed by the record the plaintiff, upon proper motion, would have been entitled to a directed verdict upon the issue of the liability of the defendant Groves. The question of liability under the evidence disclosed by the record is clearly separable and distinct from the question of damages; * *
Decisions of this Court made before the promulgation of the Rules of Civil Procedure define the strict limitations *670on the power and duty of a court to direct a new trial solely on a single issue. Moss, Admrx. v. Campbell’s Creek Railroad Co., 75 W. Va. 62, 83 S. E. 721 involved a wrongful death action in which judgment was entered by the trial court on a jury verdict for $5,000. On appeal, this Court perceived no error in the record except that the trial court should have sustained a demurrer to the declaration because of the absence of an allegation of the appointment and qualification of the personal representative. The Court reversed the judgment and remanded the case for the sole purpose of permitting allegation and proof of the appointment and qualification of the administratrix. The second point of the syllabus is as follows: “As a general rule a new trial when granted is awarded for the entire case; but when manifest justice demands, and it is clear that the course can be pursued without confusion, inconvenience, or prejudice to the rights of any party, a new trial may be limited to a particular, separable question.” Obviously the issue to be tried on the remand in that case was not even remotely related either to the quantum of damages or to the issue of liability.
Chafin, Adm’x. v. Norfolk & Western Railway Co., 80 W. Va. 703, 93 S. E. 822, involved an action for recovery of damages for a death which was alleged to have resulted from the wrongful act of the defendant. The defendant demurred to the evidence and the jury returned a conditional verdict for the sum of $19,000 in favor of the plaintiff. The Court, in the circumstances, held that the issue of liability had been determined and that excessiveness of the verdict was the only error requiring reversal. The judgment was reversed and the case remanded for trial of the single issue of damages.
In Taylor v. Sturm Lumber Company, 90 W. Va. 530, 111 S. E. 481, the Court held that the verdict was excessive in a definitely ascertainable amount and therefore the Court remanded the case to the trial court with directions to put the plaintiffs to their election of remitting the excess or of suffering the verdict to be set aside.
Auto Sales Company v. Yost, 91 W. Va. 493, 113 S. E. 758, involved an action for recovery of an automobile, or *671in the alternative, for its value. On an agreed state of facts the Court determined, as a matter of law, that the plaintiff was entitled to recover and, therefore, remanded the case to the trial court with directions to impanel a jury to ascertain the value of the automobile and the amount of damages, if any, for the detention thereof. Substantially to the same effect is Stone v. United Fuel Gas Company, 111 W. Va. 569, 163 S. E. 48.
An extensive annotation in 85 A.L.R. 2d considers the subject of granting new trials on the separate issue of liability in tort actions. The following summary of court decisions appears in Section 7 at page 26: “The prime requisites for the limitation of a new trial in a tort action to the issue of damages, where such limitation is permissible under the local rules or practice, are (1) that the issue of damages be entirely separate and distinct from the issue of liability; (2) that the liability of the defendant be definitely established; and (3) that such limitation will not operate to the prejudice of the defendant. It has frequently been stated, furthermore, that the power to limit the new trial to the issue of damages must be exercised with caution, and it has been held that any doubt as to the propriety of such limitation must be resolved against it.” At pages 31 and 32 of the annotation it is stated that “the limitation of the new trial to the issue of damages has been denied in some cases on the ground that the defendant might be able to produce evidence warranting a verdict or judgment in his favor.” During the time I have been a member of this Court, I believe that, in reversing judgments and granting new trials, we have rather scrupulously and consistently been reluctant to remand the case with directions to the trial court to enter judgment for the plaintiff or for the defendant on the record before us, because we recognize that we are not warranted in assuming that the evidence on the issue of liability will necessarily be the same on a new trial. The following statement appears in 66 C.J.S., New Trial, Section 11 (3), page 97: “It has been held that the practice is not to be commended and should be adopted with caution, in furtherance of justice, and only where it is clear that no prejudice will result to either party, and not where the issues of negligence *672and damage are so inseparably blended that one cannot be fairly tried without proof of the other.”
“Where there is ground, such as the gross inadequacy of the damages if plaintiff is entitled to recover at all, for a strong suspicion or inference that the award of damages was made as a result of a compromise by the jury involving the question of liability, a new trial should not be ordered on the question of damages alone.” 66 C.J.S., New Trial, Section 11(5), page 98. In Munden v. Johnson, 102 W. Va. 436, 439, 135 S. E. 832, 833, the Court, after discussing the proposition stated in the quotation appearing immediately above, made the following statement: “From the evidence in this case on the question of the quantum of damages, it does not seem possible that the jury, after fully determining that the defendant was liable to plaintiff in damages, could have arrived at a unanimous verdict of $1,000.00. It seems clear that this was a compromise verdict, where some of the jurors surrendered their conscientious convictions upon one material issue to the views of other jurors upon another issue in the case, and that neither issue was decided to the satisfaction of all.” To the same effect see Rawle v. McIlhenny, 163 Va. 749, 750, 177 S. E. 214, 221; Wright v. Estep, 194 Va. 332, 337-38, 73 S. E. 2d 371, 375.
The jury was warranted in finding from the testimony that, immediately before the accident, traffic was moving at a speed of about five miles an hour; that the plaintiff, suddenly and without any warning signal, stopped his heavy-duty, four-wheel pickup truck when the defendant’s automobile was less than a car length behind the truck; that the plaintiff got out of his truck, talked with the defendant and assured her that he had not been injured and that ho damage was done to his truck; that the point at which the plaintiff later vomited and otherwise showed indications of illness or pain was two or three town blocks from the scene of the accident; that the plaintiff had previously been injured in various accidents and had undergone one or more previous surgical operations; that he had been struck on his head in 1960 by a rock or something of a similar character; that he had a long previous history of angina pectoris; and *673had, over a long period of years, performed various types of manual labor which required lifting of heavy objects and other strenuous physical activity. His total medical and hospital bills amounted to $584.01. Deducting that sum from $1,000, the amount of the verdict, leaves a balance of $415.99 as some measure of compensation for pain and suffering. The plaintiff’s estimate of money he might have earned by contracts was highly speculative and conjectural.
I find it difficult to distinguish this case from Coakley v. Marple, 152 W. Va. 68, 159 S. E. 2d 378. I am of the opinion that the court was not warranted in setting aside the verdict either on the issue of liability or because of inadequacy of the amount of the award. I would reverse the judgment, reinstate the verdict and enter judgment for $1,000 in this Court in favor of the plaintiff.