I am unable to concur in the reason given for allowing the trial court to set aside the judgment against Glenn Smith. It is said that since the court's order is silent as to the ground upon which the judgment is vacated, we cannot assume that the trial court's reason was the inconsistency between the verdict for Mrs. Smith and that against her husband. It does not seem to me that the record supports this conclusion.
In his motion Smith pointed out that the jury had awarded damages to his wife and yet had failed to allow compensation for medical expenses that were established by undisputed testimony. The prayer in the motion was that the judgment against Smith be set aside. The court's order recites that the motion is presented to the court and that after hearing argument of counsel the court vacates the judgment. To me the only reasonable *Page 190 conclusion is that the court acted in response to, and upon the ground stated in, the motion.
This conclusion is strengthened when we remember that in effect this was a motion for new trial. We have held in cases without number that a party filing a motion for new trial abandons all assignments of error not contained in the motion. See, for example, Ferguson v. Ehrenberg, 39 Ark. 420. Hence Smith abandoned all grounds for new trial except the inconsistency between the verdicts. I think it necessarily follows that the court relied on that ground in vacating the judgment.
If I am correct in my view, then we must decide the additional question of whether the trial court has the power to set aside only one of two inconsistent verdicts. As indicated in the court's opinion, the great majority of the cases elsewhere hold that both verdicts should be set aside, since no one can tell which one truly represents the jury's intention. Here the jury for reasons of its own may have decided to include the medical outlay in the verdict for Mrs. Smith. Of course the jury had no right to adopt such a course under the court's instructions, but neither had it any right to return conflicting verdicts. If my supposition is true, then a second trial for Glenn Smith may result in a double recovery of these medical expenses. I am aware, however, that the minority rule permits what was done in this case, and by this dissent I do not intend to express my own preference between the two lines of authority. My only thought is that the question should be faced and decided.