I agree with what is said in the majority opinion with respect to the subject of the liability of defendant company. I also agree with what is said therein to the effect that whether defendant Thompson is liable is a question for the jury. I *Page 66 do not agree with the conclusion that the case should be remanded for a new trial as to defendant Thompson. As to him I think the judgment should be affirmed.
I concede that at common law the rule was that where a verdict had been rendered against two joint tort-feasors it would not be set aside as against one and permitted to stand as to the other. (20 R.C.L. 224.) The rule is condemned in Ruling Case Law in the following language: "This objection is highly technical and artificial, and the prevailing rule at present is that, inasmuch as tort feasors are jointly and severally liable and an action may be maintained against one or all at the option of the injured party, a verdict may be set aside as to one and allowed to stand as to another." (20 R.C.L. 224, and cases there cited. See, also,Bailey v. C. Lewis Lavine, Inc., 203 Pa. 273, 153 A. 422,J.J. Newberry Co. v. Faulconer, 248 Ky. 59, 57 S.W.2d 217,Stamos v. Portland Elec. Power Co., 128 Or. 310,274 P. 915, Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223,Weyer v. Vollbrecht, 208 Iowa, 914, 224 N.W. 568, andNichols v. Dunphy, 58 Cal. 605.) This is especially true where the instructions as to the measure of damages were proper, as here. (Broudy-Kantor Co. v. Levin, 135 Va. 283,116 S.E. 677, 32 A.L.R. 249.) It should be noted, too, that punitive damages are not involved here, as in the cases of Webber v.Jonesville, 94 S.C. 189, 77 S.E. 857, Washington Gaslight Co. v. Lansden, 172 U.S. 523, 19 Sup. Ct. 296, 43 L. Ed. 543, andAlbright v. McTighe, (C.C.) 49 Fed. 817, cited and relied upon in the majority opinion.
The case of Bradley v. Blandin, 92 Vt. 313, 104 A. 11, Id., 94 Vt. 243, 110 A. 309, cited in the majority opinion, does not touch upon the point here involved. The case ofWhitcomb v. Dickinson, 169 Mass. 16, 47 N.E. 426, was one on an alleged joint contract and is thus clearly distinguishable. The case of Courtney v. American Railway Express Co.,120 S.C. 511, 113 S.E. 332, 24 A.L.R. 128, was one in slander, and while it does not appear in the opinion, it is reasonable to suppose that punitive damages were awarded. Where punitive *Page 67 damages are awarded and based upon the wealth of defendants (Johnson v. Horn, 86 Mont. 314, 283 P. 427), unless separate awards are made against each defendant, as should be done in such a case (Edquest v. Tripp Dragstedt Co.,93 Mont. 446, 19 P.2d 637), there may be reason for granting a new trial to one defendant against whom a joint judgment has been entered, when a dismissal is ordered as to the other. But no such reason exists when the damages are compensatory only, as here.
My associates, evidently realizing this, hold that the award is excessive and appears to have been given under the influence of passion and prejudice. If that be so, then there is justification for the granting of a new trial, and what is said in the majority opinion about the prejudice to Thompson because of submitting the case to the jury as to the company is obiterdictum. At most it is but the speculation on the part of the court as to the cause of the prejudice and passion, a matter which does not concern us. If the award is so excessive as to warrant us in saying that it resulted from passion and prejudice, a new trial is proper and it becomes wholly immaterial as to what served as the motivating circumstances in producing the passion and prejudice.
Is the verdict excessive and was it rendered under passion and prejudice? The action was brought by the administratrix on the cause of action that Miss Reed had, and which upon her death survived to this plaintiff. (Melzner v. Northern Pacific Ry.Co., 46 Mont. 162, 127 P. 146.) It is immaterial that Miss Reed had no dependents or that she did not contribute to the support of relatives. The action is for her own pain and suffering and for the destruction of her earning capacity. That she suffered excruciating pain between the time of her injury and death, a period of about nine hours, is clear. Doctor E.C. Person partially described her injuries and death, as follows: "Her left leg was badly broken through the middle of the left femur; there was a large deep laceration extending from the inner aspect of the left thigh about eight inches above the knee, extending from there up on the back *Page 68 of the leg, and up on the back of the thigh to about the level of the top of the hip bone. The laceration was approximately two feet in length. It was deep enough so that all the muscles of her thigh were exposed in that region; both ends of the fractured femur were exposed and sticking out of the wound; the femur was a comminuted fracture and also compound. While we were manipulating this leg in an endeavor to put it in good position the patient suddenly died, which was apparently from an embolism from the fractured femur. She died on the operating table." It is true that Dr. Person said that she was "in a rather semi-conscious state," but he also said she would reply to some questions.
Mrs. Walter Edstrom, a sister of Miss Reed, was in the room at the hospital before her sister died, and testified: "While I was in there she was in great pain, and the nurse informed me not to talk to her, it was against the hospital rules, and all she seemed to do was to complain of the pain in her leg."
Miss Reed was earning $175 per month, was 25 years of age, and in good health. She had a life expectancy of 38.81 years. The record shows that an annuity returning to her the sum of $175 per month would cost $42,924. In the complaint plaintiff asked for $40,000. The jury found for less than one-half the sum demanded, and in my opinion the award is amply sustained by the evidence.
We have heretofore sustained a verdict in the sum of $15,000, and I think properly, for the death of an 8 year old boy with no earning capacity. (Autio v. Miller, 92 Mont. 150, 11 P.2d 1039, 1045.) In the case of Staff v. Montana PetroleumCo., 88 Mont. 145, 291 P. 1042, we sustained a verdict for $15,700 for injuries to a woman engaged as a housewife. We have sustained a verdict for $30,000 for injuries to a young man 25 years of age whose earning capacity was reduced by $210 per month and who had expended $3,570 for medical and hospital expenses, and who suffered pain. (McNair v. Berger, 92 Mont. 441,15 P.2d 834.) *Page 69
"In the very nature of things there can be no fixed measure of compensation; nor may the award in any given case be accepted as a conclusive standard in any other case, because, it being the province of the jury to determine what the amount shall be, the sums awarded in different cases vary as widely as do the individual views, capacities, and dispositions of the men who constitute juries, chosen, as they are, by lot from the body at large of the citizens of the community. So long as we have a system which confides to juries the duty to determine the issues involved in this character of cases and to fix the amount of compensation to be paid, unless the result of their deliberation is such as to shock the conscience and understanding, it must be accepted as conclusive." (Autio v. Miller, supra.)
I think it cannot be said the verdict of $18,000, under the circumstances here, shocks the conscience. I think, also, that if it be held to be so excessive as to necessitate a new trial rather than a reduction of the verdict, the court should indicate by dollars and cents the amount by which it is excessive, so that plaintiff may amend the complaint accordingly and thus insure avoidance of repetition of the error on another trial. In my opinion, however, the verdict is not excessive, and I think the judgment should be affirmed as against defendant Thompson.
Rehearing denied June 20, 1934. *Page 70