In addition to the loss of his arm respondent sustained, as a result of the accident, an injury to his head the severity and permanency of which are in dispute.
I dissented from the opinion originally filed in this case because the question of damages was submitted to a jury and it unanimously found $35,000 to be adequate and not excessive. Its members had an opportunity to, and were charged with the duty to observe the demeanor of the witnesses, including respondent, while testifying and were in better position than are the members of this court to determine as to their credibility and as to what the verdict should be. Furthermore, if it is the purpose of this court to attempt to discharge the duties of a jury and determine what the verdict is to be, it should govern itself by the rules of evidence, intended for the guidance of triers of facts, and not be actuated by the decisions of other courts in other cases. What other courts have done is not admissible in this case to fix the amount of recovery, nor to prove anything else. Since the evidence of what damages have been awarded other litigants for their injuries was not available to the jury the Supreme Court should not base its modification of the verdict thereon.
After rehearing I was and am still of the opinion the verdict should not be disturbed, and I voted, and am still trying to vote, to affirm the judgment.
I dissent from the opinion on rehearing on the ground that it pronounces a decision by a minority of the court in violation of Idaho Constitution, article 5, section 6, which provides:
"The Supreme Court shall consist of five justices, a majority of whom shall be necessary to make a quorum or pronounce a decision . . . ." *Page 429
In this case the chief justice is in favor of reducing the judgment from $35,000 to $20,000 with the alternative that it be reversed unless the reduction be agreed to by respondent, and two of the justices are in favor of reducing it to $25,000 with like alternative. One of the justices is in favor of reversing the judgment and remanding the case for a new trial on the sole question of the amount of damages to be awarded, and I am in favor of affirming the judgment for respondent in the sum of $35,000.
The chief justice and the two justices who favor lopping $10,000 off the recovery are agreed that the judgment is reduced to that extent, although but two justices voted for it, and that an option is given respondent to accept it or suffer a reversal.
While it takes three members of this court to constitute a majority, required by the constitution to pronounce a decision, and but two are agreed that the judgment shall be $25,000, the reasoning of the opinion on rehearing, admirable for its ingenuity, has brought about the remarkable result of 1+1=3. In order to produce this mathematical monstrosity my vote to affirm the judgment for $35,000 has been so counted as to reduce it to $25,000, or to reverse it if that result proves to be less distasteful to respondent than the reduction.
All this is, no doubt, entirely clear to the three members of the court who have agreed that this is the result of our disagreement, but it leaves me scratching my bucolic head in uncertainty as to which shell conceals the elusive little ball of justice. *Page 430