Cook & Woldson v. Gallatin Railroad , 28 Mont. 509 ( 1903 )

Mb. Justice Holloway:

I dissent. I particularly disagree with the order remanding, the cause for a new trial as to the fourth cause of action only. I am of the opinion that the entire cause should be retried, for, while the complaint contains four distinct causes of action, the jury found for the plaintiffs in a gross sum, without determining the amount which they should recover on each cause of action separately. For this reason, I believe the verdict entirely insufficient. (22 Enc. PL & Pr. 850, and cases cited.) The cause is remanded for a new trial upon the fourth cause of action, and, if upon a second trial the jury should return a verdict for a, sum less than the amount claimed, I am of the opinion that the: district court would be unable intelligently to properly modify tbe existing judgment, for the reason that it could not determine whether the verdict upon a second trial was for a greater or less amount than the verdict on that cause of action on the first trial.