dissenting:
I dissent from the action taken by the majority upholding the previous opinion issued on October 12,1983 (after again modifying the judgment downward). The errors committed in this case are sufficiently egregious, when viewed on the whole, to *714warrant an outright grant of a new trial on the issue of damages.1
The first error occurred in this case in the trial court’s instructions to the jury on the damages. The special verdict given to the jury relating to damages stated:
“We, the jury, assess [plaintiffs’] damages against the Defendants as follows:
A. Compensatory damages $_
B. Punitive damages $_”
Only three instructions were given on damages.2 Instruction 24 stated that compensatory damages consisted of (1) property damage, and (2) “special or consequential damages.” While Instruction 24A defined what property damage was, nowhere in the instructions was the term “special” or the term “consequential” damages defined. The instructions totally failed to inform the jury as to the elements of, or what constituted consequential or special damages. Because of this initial error in failing to instruct on the definition of these elements of damages, the jury understandably considered and awarded improper damages in this category, such as out-of-pocket attorney fees and damages for mental suffering, which even the trial court later recognized were improper when he shifted those elements out of the compensatory damages category awarded by the jury and put them in the punitive damages category.
The . second major error occurred when the court refused the defendants’ request to poll the jury to determine how they arrived at their verdict after it was obvious that an error had been committed by the jury in calculating the damages.
“MR. SMITH: Yes, if the Court please. I would request that the jury also be polled with this question:
“Did any of you jurors copy off or reduce to writing any of the charts or summaries or figures therefrom which were used by plaintiffs’ attorneys, Verbillis or Wilde, during the course of final argument on December 7, 1979?
“If the answer is, yes, I would request that the further question be made. “Were such writings used in the discussion and deliberation of the jurors in reaching their award of damages for any of the plaintiffs?
“THE COURT: I think that would be an invasion of the jury process, Mr. Smith. I will deny your motion.
*715“MR. HAM AN: Let the record show, Defendant, Sprinkel, joins in that request, your Honor.
“THE COURT: Motion is denied.”
Stopping at that point to determine the source of the obvious error would have alleviated any problem of impeaching or clarifying the verdict at a later point. If the verdict was obviously in error, as later indicated by the trial court, the jury should never have been dismissed without first correcting the verdict. All of the problems that have arisen as the result of the trial court’s amendment of the verdict directly result from the failure of the trial court to investigate the problem before discharge of the jury and correct it at that point. See Bates v. Price, 30 Idaho 521, 166 P. 261 (1917) (if verdict is irregular, it is duty of court to send jury back to correct it).
The third major error occurred when the trial court modified the verdict based upon affidavits of the jurors that were procured without notice to the defendants, in violation of the Code of Professional Responsibility, Rule 7-108(D). That rule requires that any contact with the jury after their discharge be accompanied by or following reasonable notice to the opposing counsel and other interested counsel. Plaintiffs’ counsel failed to follow this rule in obtaining the affidavits of the jurors, depriving the defendants’ of their basic right to be notified and have the opportunity to be present. The trial court then erred in using those affidavits to rework the verdict, instead of reworking the verdict upon information obtained in open court from a polled jury in which both counsel were permitted to participate. The very type of information which the defendants sought in open court, and which was denied to them by the trial court, was then obtained by the plaintiffs in violation of Rule 7-108(D)3 and used by the trial court in reworking the verdict.
The next major error occurred when the trial court moved certain elements of damages from the award of compensatory damages to the award of punitive damages. This action resulted in an increase of the award of punitive damages from the jury’s figure of $54,500 to the trial court’s figure of $196,558.95. There is no indication that the jury, in awarding $54,500 “to punish the defendants and to deter others from engaging in similar conduct,” would have agreed to increase that figure to over $196,000 if some of the compensatory damages awarded were legally improper. While it is apparent that the jury intended to punish the defendants, it is not apparent that they intended to punish the defendants to the extent allowed by the trial court’s reworking of the jury verdict, which raised the jury’s award of punitive damages approximately $142,000.
By this point it should have been obvious to all that a new trial was necessary because the previous verdict was by now hopelessly mired in controversy, and barely resembled the original verdict returned by the jury. However, this Court then took it upon itself to make a further change in the verdict, reducing the punitive damages awarded to $117,458.95, because of an alleged double recovery of attorney fees. Then, on rehearing, this Court has again reworked the “verdict of the jury” by disallowing a further one-third sum allegedly awarded as attorney fees. By now, a verdict of the jury which existed at one point in time no longer exists except possibly in the minds of the jury.
Accordingly, I believe fairness requires that the appellants be given a new trial on the issue of damages. It is obvious that the jury was confused on the damages issue because of the inadequate instructions. The trial court expressly said so and used that confusion as his justification for re*716working the jury’s verdict. That confusion resulted from the fact that the trial court did not instruct the jury as to what constituted compensatory damages in this case. In Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974), we held that even though each of the instructions given to the jury was proper, in effect an improper grouping of them constituted reversible error. How much more so should we reverse the damages award in this case because of the failure to adequately instruct, the obvious confusion found both by the trial court and this Court, and the reworking of jury verdicts based upon affidavits of jurors, taken without notice, when the other party was denied the opportunity to attempt to elicit the same information in open court, where both parties could participate.
Accordingly, I dissent.
. However, while I would grant a new trial on damages, since a new trial on the issue of damages is not going to be ordered by this Court the reduction of damages set out by Justice Huntley in the present majority opinion is appropriate.
. “INSTRUCTION NO. 24
“If you decide for the Plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damage proved by the evidence to have resulted from the conduct of the Defendants: "1. The amount established by the evidence as and for property damage. This amount includes the differences, if any, between the contract purchase price as to each particular parcel, and the actual value at the time of the sale. "2. The amount of money each Plaintiff is entitled to as a result of special or consequential damages which are the natural result of the Defendants fraud.
"The above two elements are known as compensatory damages; and
"3. Punitive damages, which is more fully explained elsewhere in these instructions. "Whether any of these elements of damages has been proved by the evidence is for you to determine.
"INSTRUCTION NO. 24A
"You are instructed that, as to the property damage aspect in a misrepresentation case, the proper element of damages is the difference between the contract sale price and the actual value of the property bought.
"The reasonable cost of supplying or repairing the parts necessary to put the property in the condition it was represented it would be in is proper evidence for you to consider in determining the difference between the purchase price and the actual value of the property bought.
"INSTRUCTION NO. 25
"If you find that the defendants’ conduct which proximately caused injury to the plaintiffs was fraudulent, and if you believe that justice and public good require it, you may, in addition to any damages to which you find plaintiffs entitled, award to the plaintiffs an amount which will serve to punish the defendants and to deter others from engaging in similar conduct. Such an award must bear some reasonable relation or proportion to the actual damages, the cause thereof, the conduct of the defendants, and the objective of deterrence.”
.' Nothing in the record suggests that the failure in this case to comply with Rule 7-108(D) was knowing or willful, and the defendants do not make that charge. Their complaint is that, while the jury was still in court, they requested permission of the trial court to interrogate the jury on the same matters which were later included in the affidavits taken without notice to them, and they were refused.