¶1(dissenting).
¶2There is much said in the foregoing majority opinion on questions not involved in the ease and were they involved I would have no quarrel with what is said on those subjects.
¶3The only question involved in the case, and the one that is decisive of the appeal is whether under the facts the appeal should be dismissed. Determination of that question depends upon whether there can be an appeal from a part only of a judgment.
¶4An affirmative answer to that question is found in the statute which expressly authorizes an appeal from a judgment, “or some specific part thereof.” Section 93-8005.
¶5The statute alone should settle the question.
¶6But let us consider the state of the record. Plaintiff sought general damages for physical and mental pain and suffering in the sum of $30,000; special damages in the sum of $30,000; for the cost of a man at $300 per month to take his place in his garbage disposal business; and for medical and hospitalization expense in the alleged sum of $507.40.
¶7The jury returned a verdict for plaintiff and assessed his *59damages in the sum of $507.40, being the exact amount sought for medical and hospital expenses. Judgment was entered on the verdict.
¶8Plaintiff gave notice of intention to vacate and set aside the verdict and judgment, and for a new trial, specifying as grounds the insufficiency of the evidence to justify the verdict and judgment in that the jury decided in favor of plaintiff’s right to recover, but fixed his damages only for medical and hospital expenses and ignored uncontradicted evidence of other damages.
¶9At the time fixed for the hearing on the motion for new trial, plaintiff made an oral motion in conformity with the notice of intention. The court failed to rule on the motion and by force of the legislative fiat, section 93-5606, R.C.M. 1947, it was deemed denied.
¶10Plaintiff filed notice of appeal stating that he appeals “from a part and portion of that certain final Judgment … * to-wit:
“That portion awarding to the plaintiff damages only in the sum of Five Hundred Seven and 40/100 ($507.40) Dollars. ’ ’
¶11Defendant Yurick, for himself alone, filed a motion to dismiss the appeal upon the ground that the appeal is from a part or portion of the judgment and that the judgment is not divisible or separable into parts or portions.
¶12Section 93-8005, R.C.M. 1947, expressly authorizes an appeal from a judgment “or some specific part thereof.” This court has held that it is only where a judgment is divisible into parts that an appeal will lie from only a part of the judgment. Wills v. Morris, 100 Mont. 504, 50 Pac. (2d) 858; State ex rel. Mueller v. Todd, 117 Mont. 80, 158 Pac. (2d) 299.
¶13Respondents rely upon Lohman v. Poor, 68 Mont. 579, 220 Pac. 1094, as supporting their contention that an appeal must be taken from the whole of the judgment. The judgment in that case, as the court pointed out, was indivisible and for that reason not reviewable by piecemeal.
¶14*60In Osmers v. Furey, 32 Mont. 581, 81 Pac. 345, 349, this court in an action to recover the possession of property and for damages for its wrongful tailing said “the issue as to damages being clearly separable from the other issues in this case, this court, in order to correct a judgment including them, would not have ordered a new trial of the whole case, but of this issue only.”
¶15The courts are not in agreement as to whether a judgment rendered on a verdict for plaintiff in a personal injury action is severable so that it can stand as to liability but be ordered retried as to damages. The following cases, among others hold that a verdict, proper in all respects except as to damages, will be upheld as to the issues of negligence and liability, but ordered retried as to damages only. May Department Stores Co. v. Bell, 8 Cir., 1932. 61 F. (2d) 830; Atkinson v. Dixie Greyhound Lines, Inc., 5 Cir., 1944, 143 F. (2d) 477; Chesevski v. Strawbridge & Clothier, D. C. N. J. 1938, 25 F. Supp. 325; Mondine v. Sarlin, 11 Cal. (2d) 593, 81 Pac. (2d) 903; Moeller v. Market Street Ry. Co., 27 Cal. App. (2d) 562, 81 Pac. (2d) 475; Nelson v. Fairfield, 40 Wash. (2d) 496, 244 Pac. (2d) 244; Wall v. Van Meter, 311 Ky. 198, 223 S.W. (2d) 734, 20 A.L.R. (2d) 272; Hirsh v. Manley, 81 Ariz. 94, 300 Pac. (2d) 588; and Palmer v. Kelly, 52 Ariz. 98, 79 Pac. (2d) 344. And see Norfolk Southern R. Co. v. Ferebee, 238 U. S. 269, 35 S. Ct. 781, 59 L. Ed., 1303; Gasoline Products Co., Inc. v. Champlin Refining Co., 283 U. S. 494, 51 S. Ct. 513, 75 L. Ed. 1188.
¶16An identical situation was presented in Murrow v. Whitely, 125 Colo. 392, 244 Pac. (2d) 657, 663. There, as here, the jury returned a verdict for the exact amount claimed for damages as physician’s fees and other expenses necessitated because of plaintiff’s injuries in an automobile accident. The verdict as here ignored the instructions relating to other items of damages. The court ruled that there were three separate and distinct issues presented; the first was whether plaintiff was a guest within the meaning of the guest statute; second, the *61question of liability; and third, that of damages. Speaking on the issue of damages the court said:
“The third issue, separate, distinct and apart from either of the other two, was what sum, under the evidence and instructions of the court, should be awarded plaintiff for damages for her injuries. By the instructions of the court, the jury was advised that it should assess actual damages for plaintiff’s expenditures in hospital and doctor bills, ambulance costs, drugs, x-rays, and so forth, and, in addition thereto, plaintiff, under the instructions of the court, was entitled to damages in such sum as would reasonably and justly compensate her for her injuries, the nervous shock sustained by her, and physical and mental pain and anguish presently and in the future to be endured by her. She also was entitled, according to the court’s instruction, to damages for her permanent injury and disability, and loss of earnings, as well as loss of future earnings by reason of her disability, and also the costs of future medical attention, but, according to the court’s instruction, her damages were limited to the sum of $15,585.16. As we have said, the jury failed to follow the court’s instruction in the assessment of damages.”
¶17There the court had a rule which in substance empowered the court to grant a new trial on “all or part of the issues” much like our statute conferring the right to appeal from all “or any specific part” of a judgment. Section 93-8005.
¶18After referring to many cases supporting the view that the judgment was divisible the court said:
“After liability is once established, the question as to the sum to be awarded as damages is entirely separate, distinct and apart therefrom and not interwoven therewith. It definitely appears that the jury disregarded the court’s instruction as to the measure of damages and returned a verdict inadequate under the evidence before it. There was no error requiring a retrial of all of the issues in the case, and under the decisions, supra, we are convinced that our Rule 59C (a), supra, was *62promulgated by this court to cover a situation such as is here presented.”
¶19The court remanded the cause for trial on the amount of damages only.
¶20There are some cases taking the contrary view. See Clifford v. Ruocco, 39 Cal. (2d) 327, 246 Pac. (2d) 651.
¶21In 66 C.J.'S. New Trial section 11(3), page 97, the rule is stated as follows:
“It may not be said as a matter of law that in every personal injury case the issues of negligence and damage are so inseparably blended that a new trial, if granted at all, must be granted as to all the issues and cannot be confined to the issue of damages alone; the question is not one of jurisdiction, but rather one of discretion. Accordingly, in an action based on negligence, the question or issue of damages may be distinct or separable from that of liability, although under some circumstances this may not be true; and the trial court may grant a new trial on the single issue of damages when a jury have properly determined the issue of defendant’s negligence, proximate cause, and plaintiff’s freedom from contributory negligence, although not otherwise.
“It has been held that the practice is not to be commended and should be adopted with caution, in furtherance of justice, and only where it is clear that no prejudice will result to either party, and not where the issues of negligence and damage are so inseparably blended that one cannot be fairly tried without proof of the other.”
¶22Here the jury was fully instructed on the issue of liability. Instructions placed the burden of proof on plaintiff to establish by a preponderance of the evidence one or more of the acts of gross negligence charged and that such negligence was the proximate cause of plaintiff’s injuries. The jury was also advised concerning the effect of contributory negligence and that the case should be considered without regard to sympathy, prejudice or passion for or against any party to the action. The jurors were then told in plain language that they *63could find damages for plaintiff only in the event that liability of defendants was first established. In fact the court instructed the jury as follows:
“In this case you may find any one of the following verdicts:
“1. For the plaintiff;
“2. For the defendants.
“If you find the issues herein in favor of the plaintiff on his cause of action, then you must fix in the verdict the amount which the plaintiff is entitled to receive, in no case exceeding the sum prayed for in the Complaint.”
¶23This court in the light of the foregoing would be indulging in violent assumptions were we to surmise that the verdict was probably the result of prejudice, sympathy or compromise as did the court in the Clifford case, supra, and this even though the evidence on the question of defendants’ liability was conflicting or contradictory. That simply made the question of liability one for the jury. A more rational presumption is that the jury followed the instructions in finding liability. The case is one where the question of liability was and is separate and distinct from that of damages and the jury was so informed.
¶24The verdict itself shows that the jury considered the two issues as being separate and distinct. The verdict reads:
“We, the Jury, in the above entitled action, find in favor of the Plaintiff and against the Defendants, Neil W. Byers and Robert Yurick, and each of them, and assess Plaintiff’s damages at Five Hundred & Seven Dollars & Forty Cents ($507.40) Dollars.”
¶25In line with the case of Osmers v. Furey, supra, and the other cases above-cited, I think the issue of liability is separate and distinct from that of damages and that plaintiff had the right to appeal from that part of the judgment, fixing damages without appealing from that part of the judgment fixing the liability of defendants.
¶26So far as the merits of the appeal are concerned, little need be said. The jury could not award to plaintiff the medical and *64hospital expenses without also making an award for pain and suffering and for loss of earnings.
¶27I am impressed with what the Kentucky Court of Appeals said in the Wall case, supra [311 Ky. 198, 223 S.W. (2d) 736], It there said: “The verdict reads: ‘We, the following jurors, find for the plaintiff in the sum of $98.’ It was signed by nine jurors. It is evident from the verdict that the jury found appellee was negligent and that appellant was not guilty of contributory negligence, and was entitled to recover the damages he sustained in the accident. Such being the case, it was incumbent upon the jury to compensate him for all damages he suffered, that is, for his pain and suffering as well as for his medical expenses. With reason the jury could not have awarded him a recovery for his medical expenses and then denied him recovery for the very injuries which necessitated such medical expenses. Once the jury found appellant was injured as the direct and proximate result of appellee’s negligence, it was the duty of the jury not to ignore the law and the facts but to compensate appellant for his pain and suffering as well as his medical expenses. We are constrained to regard this verdict as severable and as having awarded nothing for appellant’s pain and suffering which was proven by imcontradicted testimony.”
¶28Here the uncontradicted evidence shows that plaintiff endured some pain and suffering and sustained some loss of earnings.
¶29The jury was not at liberty to ignore this evidence. Neither can it be said that the jury’s verdict may be construed otherwise than a finding for hospital and medical expenses alone as some courts have held under similar facts.
¶30Just how the majority find section 23 of Article III of our Constitution applicable here is not understandable. That section guarantees the right of jury trials. It does not guarantee more than one jury trial on specific issues.'
¶31My devotion to the constitutional guarantee of the right to a jury trial is as fervent as that of those who concur in the *65majority opinion. That right was accorded here when the jury found defendant liable.
¶32If section 23 of Article III has any application here it is because the jury failed to perform its duty in passing upon the question of damages and that therefore the judgment should be reversed and the cause remanded for new trial on the question of damages only.