dissenting.
We have here a case where the jury found in favor of the plaintiff on the primary issue — that of liability. Had the jury’s decision on that issue gone for the defendant the secondary issue of damages would not have been reached. So it is with all such cases; the defendant will be said to have prevailed in the action when the jury decides the primary issue in the defendant’s favor. That should be the beginning and the end of the Court’s opinion. Unfortunately it is not. The Court, in addition to unconstitutionally entering into the field of allowing attorney’s fees, which it did by attempting to improve upon the legislature’s I.C. § 12-121, and which it did by allowing attorney’s fees as punitive damages, Cox v. Stolworthy, 94 Idaho 683, 496 P.2d 682 (1972); Jolly v. Puregro, 94 Idaho 702, 496 P.2d 939 (1972) (see dissenting opinions of Justice McQuade), now opens up for more litigation the determination of “just who was the prevailing party?”
Believing that today’s opinion is not supported in precedent or in logic, I am impelled to briefly state the authorities which bring me to dissent.
The Court’s approach is observed as being a two-step analysis — first, that the defendant was the prevailing party for the purpose of awarding costs and, secondly, that it thus follows that he was also the prevailing party for the purpose of awarding attorney’s fees.
I.
COSTS
The majority opinion takes a stand which is contrary to the immediately apparent result and, in fact, is also contrary to the relevant precedent. Under Federal Rule 54(d), which is representative of the usual approach to awarding costs, courts may not award costs to a party who does not obtain an affirmative judgment in its favor. As stated in Moore’s Federal Practice, § 54.-70(4), at 1306-07 (Supp. 1980-81), “[i]n general, a party in whose favor judgment is rendered by the district court is the prevailing party in that court. . . . Although a plaintiff may not sustain his entire claim, if judgment is rendered for him he is the prevailing party.” (Citations omitted.) While the trial court under the federal rule has the discretion to deny costs to a prevailing party, and that discretion may well be exercised where the ultimate award is substantially less than the damages sought, *585this does not give a court the authority to award costs to a party who does not have a judgment in its favor. See Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 998-99 (5th Cir. 1976) (district court does not have power to award costs to defendants even though plaintiffs won only nominal damages).
Similarly, the general rule governing cost awards as stated in 20 Am.Jur.2d Costs § 15 at 14 (1965) is:
“[Tjhat the successful or prevailing party in an action at law is entitled to recover costs, even though he may be accorded only part of the relief demanded. In such case there can be no apportionment of costs in the absence of some statutory authorization; the court is without power to make an apportionment of costs based upon the fact that the prevailing party has failed in a part of his claims or that for other reasons only a part or none of the costs should be allowed.” (Citations omitted.)
In short, this Court makes a major departure from other jurisdictions when it holds that costs (and attorney’s fees) may be awarded to a party who did not win an affirmative judgment.
The majority bases this departure entirely upon the language of I.R.C.P. 54(d)(1)(B), which provides:
“Prevailing Party. In determining which party to an action is a prevailing party and entitled to costs, the trial court shall in its sound discretion consider the final judgment or result of the action in relation to the relief sought by the respective parties, whether there were multiple claims, multiple issues, counterclaims, third party claims, cross-claims, or other multiple or cross issues between the parties, and the extent to which each party prevailed upon each of such issues or claims. The trial court in its sound discretion may determine that a party to an action prevailed in part and did not prevail in part, and upon so finding may apportion the costs between and among the parties in a fair and equitable manner after considering all of the issues and claims involved in the action and the resultant judgment or judgments obtained.”
To my mind, I.R.C.P. 54(d)(1)(B) simply attempts to and does no more than provide guidance to a trial court in determining whether a party which has obtained an affirmative judgment may have prevailed to the extent that it is entitled to costs. Had it been intended that the rule would work such a drastic departure from the general rule (as the majority is now saying), one would have expected such a departure to be much more clearly delineated.
II.
ATTORNEY’S FEES
As to attorney’s fees, which were awarded under I.C. § 12-121, I had always thought that this statute incorporated and applied the same general rule concerning “prevailing parties” as is applied in determining the award of costs. The majority today holds, however, that not only does I.R.C.P. 54(d)(1)(B) provide for an entirely different rule regarding cost awards than is followed in other jurisdictions, but I.C. § 12-121 (which simply provides for attorney’s fees to be awarded to the prevailing party), was also intended to allow such fees to be awarded to a party who failed to gain an affirmative judgment. One would surmise that the majority is (understandably) reluctant to hold that a party may “prevail” for purposes of I.R.C.P. 54(d)(1)(B) but not prevail for purposes of I.C. § 12-121. Their solution to this self-created dilemma, unfortunately, is to hold that their imaginative interpretation of I.R.C.P. 54(d)(1)(B) must be applied to I.C. § 12-121. This rather neat trick places a further judicial gloss on I.C. § 12-121 which would be otherwise unavailable given the general rule governing such statutes.
I prefer to read I.R.C.P. 54(d)(1)(B) in conformance with I.C. § 12-121, rather than vice versa. Not only is this more in keeping with standard rules of judicial construction, but it is more desirable from a policy standpoint. Today’s decision will undoubtedly *586discourage those with legitimate grievances from pursuing a remedy in the judicial system unless they are convinced that they will recover a substantial amount of damages in addition to winning on the issue of liability.1
III.
The way in which a jury can hedge, vacillate or compromise on the liability issue is readily available under the law of comparative negligence. There is, however, on the issue of damages, no law of comparatives, other than that trial courts, and appellate courts in review of a damage award, can and do resort to statistical compilations which show that the loss of a leg has been valued at a thousand dollars, and has been valued at many, many times that amount. The answer is, of course, that different juries set different amounts, and there is such little rhyme or reason to it that some courts flatly will not interfere. This Court, for example, in a nearly unanimous opinion, in Bentzinger v. McMurtrey, 100 Idaho 273, 596 P.2d 785 (1979), upheld as not inadequate a jury’s award of $425.40 general damages for uncontradicted disabling back injuries. See also the dissenting opinion of Justice Shepard in Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979).
The point being made, of course, as all practicing attorneys will freely agree, is that the vagaries of a juTy in assessing damages are beyond prediction. The instructions given to a jury on assessing general damages clearly tell the jurors that the amount is up to them and their collective best judgment — supposedly, of course, based on the evidence. Recently a jury in southeastern Idaho returned a $5,000 verdict for the wrongful deaths of a father and mother. Competent attorneys evaluating such a case would reasonably not be surprised at a verdict twenty or thirty times that amount.
It is for certain that juries may misfunction. When a jury returns what the plaintiffs and their attorneys perceive to be an inadequate damage award, there is, of course, the right of appeal. The plaintiffs in Dinneen and in Bentzinger went that route. The Dinneen plaintiff narrowly won a new trial. The Bentzinger plaintiff struck out, and incurred additional costs and expenses for the misguided effort.
It is plainly to be seen that courts generally have been more prone to interfere with claimed excessive damages than with claimed inadequate damages. From this truism there comes the fact that a plaintiff receiving inadequate damages must on occasion face up to reality. It will be the rare occasion in Idaho when the Court interferes with an inadequate damage award.2 While it may “smart” a bit to be handed damages which one thinks to be woefully inadequate and forego any further litigation, the trauma there experienced is nothing in comparison to having the injury compounded by an interpretation of a procedural rule of Court which allows the victim of the inadequate damage award to fall victim as well to the assessment of attorney’s fees in favor of the losing party.
In the opinion that court also recognized the impossibility of attempting to fathom the misfunctioning of a jury:
*587“We make no attempt to guess why the jury absolved Matthews Brothers from liability, or why it went to the bargain basement in order to calculate damages.”
All of this is not to suggest that this particular damage award was inadequate. It is to say that counsel’s choice may not often be to pursue the possibility of a second trial, no matter how or why the jury is thought to have misfired.
Counsel are required to be practical and realistic both in initially evaluating the damages aspect of a case, and especially so when re-evaluating after being faced with an unsatisfactory jury award. In a given case an award of $50,000 may be inadequate — but does that ipso facto make the party who proved the primary issue (of liability) liable for the other party’s attorney’s fees? I think not. I am convinced that the Court has today indeed found the key to Pandora’s box. I respectfully dissent.
. If the majority believes that the position which they take today is necessary to prevent frivolous or harassing lawsuits, they are mistaken. There are a number of remedies already available to prevent or discourage such suits, i. e., counterclaims for abuse of process, malicious prosecution, etc.,
. A refreshing exception to the general reluctance of courts to overturn a jury’s damage award may be found in Pierce v. Fairchild, 641 F.2d 729 (9th Cir. 1981), [Pending on petition for rehearing and motion for rehearing en banc.] where the court reversed and remanded for a new trial a damages award of $75,000 for the death of a previously healthy 36 year old worker, stating “[t]he judgment' in the case at bar is substantially less than the unquestionably proven damages, and the trial judge’s refusal to grant a new trial on damages was indeed an abuse of discretion.” This illustrates the error of placing blind faith in a jury’s ability to correctly determine damages, and particularly the danger of using the amount of a damage award to be the determining factor in concluding whether a plaintiff “prevailed.”