Lead Opinion
(after stating the facts). The verdict of the jury shows that they resolved the issue in favor of the appellant. Having found in favor of the appellant, the uncontradicted evidence shows that his damage was much more than the sum of one dollar. There is no evidence therefore to sustain the verdict in that sum. The jury were not authorized to disregard the undisputed testimony in fixing the amount of the damage. The court therefore should have granted the appellant a new trial. The case is ruled in this respect by Carroll v. Texarkana Gas & Electric Company, 102 Ark. 137.
The judgment is therefore reversed, and the cause remanded for a new trial.
Concurrence Opinion
(concurring). The issue as to appellee’s liability for damages was fairly tried, and the reversal of the judgment on account of the assessment of damages should not call for a retrial of the whole case. Why should appellee be given a new trial on the question of his liability merely because the jury, after finding against him on that issue, disregarded the undisputed evidence as to the amount of damages? No error has been committed of which appellee can complain. Therefore he should not be given the advantage of an error committed in his favor. If, on the next trial, he should obtain a verdict in his own favor as to his liability, he will have secured an advantage by reason of the former error which the jury committed in his favor. Justice and the orderly course of judicial proceedings only demand that the case be re-tried on the question of the amount of damages to be recovered. In this way the only error in the case will be corrected, and the verdict of the jury on the other issue fairly tried, will be allowed to stand. Issues once fairly tried and settled by a verdict should not be again opened for retrial merely because error in the proceedings demands that other issues be retried. The result announced in Carroll v. Texarkana Gas & Electric Co., supra, did not meet with my approval, though I did not record a dissent. The practice thus established is so contrary to what, in my opinion, is logical and expedient in- the administration of justice that I feel impelled to record my disapproval.