White v. Lobdell

• Court: Montana Supreme Court
• Decided: January 5, 1982
• Docket: 80-414
• Status: Published

Opinion

NO. 80-414 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

ROBERT V. WHITE and KAREN WHITE,

Plaintiffs and Respondents,

FRANK LOBDELL and KATHRYN LOBDELL and PONDEROSA REAL ESTATE,

Defendants and Respondents, and FIDELITY REAL ESTATE,

Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable Jack L. Green, Judge presiding Counsel of Record: For Appellant: Milodragovich, Dale and Dye, Missoula, Montana Michael J. Milodragovich argued, Missoula, Montana For Respondents:

William R. Baldassin argued, (Lobdell), Missoula, Montana Datsopoulos, MacDonald & Lind, Missoula, Montana Christopher Swartley argued (White) Missoula, Montana

Submitted: September 23, 1981

Decided: ;i!f{ 5- Iq'gZ Filed: !I. rv 5 I 9 [ . - Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Fidelity Real Estate appeals from a judgment against it in the District Court, Fourth Judicial District, Missoula County, in favor of Roger V. White and Karen White, in the sum of $10,255.00 and costs. We affirm the judgment in favor of Frank and Kathryn Lobdell and reverse the remainder of the judgment and remand the case for a new trial. On December 19, 1978, Frank G. Lobdell entered into an exclusive listing agreement with Ponderosa Realty, a Missoula realtor, to sell his residence located on Lot 13A, Block 3, Hillside Homes Addition No. 1, Missoula County, Montana. In the listing agreement, the irregular four-sided lot was shown as having dimensions of 214.5 feet, 190.2 feet, 92.4 feet and 130 feet. At the time, Ponderosa Realty was a participant in the Missoula Multiple Listing Service. That service sent out to the participating Missoula realtor offices a multiple listing document which showed Ponderosa Realty as the listing office, and repeated in a diagram the above dimensions for the

Lobdell lot shown on the original Ponderosa listing. Fidelity Real Estate, also a Missoula realtor, received a copy of the multiple listing as a participant in the Missoula Multiple Listing Service. Robert White, a civil engineer with the United States Forest Service, came to Missoula on January 26, 1979, to look for a home. He and his wife Karen White were shown the Lobdell residence by Valerie Ann Demos of Fidelity Real Estate. The Whites personally examined the real property involved, and on January 29, entered into a buy-sell agreement through Fidelity Real Estate. They subsequently obtained a warranty deed from the Lobdells on March 13, 1979, conveying the property described as Lot 13A, Block 3, Hillside Homes No. 1, Missoula County, Montana. After the transaction was completed, the Whites learned through a Veterans Administration survey encroachment document that the actual dimensions of the lot which they had purchased were 170.52 feet by 122.73 feet by 84.95 feet by 80 feet. The latter dimensions contained 11,349 square feet whereas the dimensions shown in the listing agreement diagram contained 19,107 square feet. The Whites filed suit in Missoula County District Court against Frank Lobdell and Kathryn Lobdell as sellers of the real property, Robert Payne and James Payne, d/b/a Ponderosa Realty, and Fidelity Real Estate. The complaint charges the defendants with negligence, actual fraud and constructive fraud in connection with the sale of the house. The Lobdells, Robert and James Payne, and Ponderosa Realty filed an answer and cross-complaint, denying any liability to the Whites and cross-claiming against Fidelity Real Estate on the ground that Fidelity Real Estate was acting as agent of the Whites and failed in its duties as their agent in closing the real estate transaction. Fidelity Real Estate answered the Whites' complaint by general denial, answered the cross-claim by general denial and alleged that the damages of the Whites were the direct and proximate result of the errors and omissions of the Lobdells and Ponderosa Realty. A pretrial order was entered by the District Court on June 25, 1980. It lists the contentions of the Whites against the various defendants. The only defendants' contentions listed are those of Fidelity Real Estate to the effect that the Whites may not recover because of comparative negligence and that any damages that the Whites may have suffered are the result of the acts of the other defendants. On the morning that the case came on for jury trial, it was disclosed to the District Court that although defendants Robert Payne and James Payne had been sued "d/b/a Ponderosa Realty," it was nevertheless true that Ponderosa Realty was a corporate entity. No issue had been raised by any party prior thereto, by pleading or otherwise, that Robert Payne and James Payne were not proper parties doing business as Ponderosa Realty. The colloquy between Court and counsel connection with that development follows: "THE COURT: Do the Defendants Lobdells and Payne have any objection? "MR. MILODRAGOVICH: None, Your Honor. One question I have for purposes of clarity of the record, when the caption was originally established on this the Defendants were Robert and Jim Payne; I think since then it's been stipulated that Ponderosa Real Estate, which was the organization that they were working for, was the actual party in interest and that Paynes were taken out of it. I don't know what the status of that is as far as at the present time. I know we show it as Ponderosa Realty in the pretrial order. "MR. SWARTLEY: For the record, Your Honor, the complaint was originally drawn reflecting Ponderosa Realty as a partnership or sole proprietorship; we later learned it was a corporation, and I believe still has corporate existence. "MR. BALDASSIN: That is correct. "MR. SWARTLEY: And if that is the case, then the individual Defendants Robert and James Payne were -- as I am sure that the evidence will develop, were acting merely as either officers, agents, or employees of the corporation, and we would be willing to stipulate to that fact. "THE COURT: Robert Payne and James Payne will be stricken as parties Defendant. It will be Frank Lobdell and Kathryn Lobdell, Ponderosa Realty Company and Fidelity Real Estate? "MR. SWARTLEY: Correct. Based on t h e s p e c i a l v e r d i c t , t h e D i s t r i c t C o u r t e n t e r e d

judgment a g a i n s t F i d e l i t y Real E s t a t e . T h i s d e f e n d a n t moved f o r a new t r i a l and f o r r e m i t t i t u r o f t h e damage award on

t h e ground t h a t it was n o t s u p p o r t e d on t h e e v i d e n c e . The c o u r t d e n i e d t h e motion f o r a new t r i a l o r r e m i t t i t u r and

t h e a p p e a l h e r e ensued.

F i d e l i t y R e a l E s t a t e raises t h e s e i s s u e s :

1. The D i s t r i c t C o u r t e r r e d i n d i s m i s s i n g Ponderosa

R e a l t y on t h e b a s i s of S t a t e e x r e l . C i t y of Havre v. D i s t r i c t

C o u r t , which e i t h e r d o e s n o t a p p l y t o t h i s c a s e o r s h o u l d be

o v e r r u l e d by t h i s C o u r t .

2. I t w a s e r r o r t o f i n d t h a t F i d e l i t y was an a g e n t of

t h e Whites. 3. F i d e l i t y a c t e d a s a s u b a g e n t of Ponderosa R e a l t y

and t h e r e f o r e Ponderosa R e a l t y i s l i a b l e f o r t h e c o n d u c t of

Fidelity.

4. Liability f o r a defective legal description i n

m u l t i p l e l i s t i n g s h o u l d b e p l a c e d on t h e l i s t i n g r e a l t o r and n o t upon t h e s u b a g e n t , t h e s e l l i n g r e a l t o r .

5. The damage award i s u n s u p p o r t e d by t h e e v i d e n c e .

The most i m p o r t a n t i s s u e on a p p e a l i s t h e p r o p r i e t y of

t h e d i s m i s s a l o f Ponderosa R e a l t y a s a p a r t y d e f e n d a n t .

A s w e have n o t e d , t h e Whites named i n t h e i r c o m p l a i n t

t h e d e f e n d a n t s , "Robert Payne and James Payne d/b/a Ponderosa Realty." There i s n o t h i n g a l l e g e d i n t h e c o m p l a i n t o t h e r t h a n i n t h e c a p t i o n of t h e c a u s e t o show t h e t y p e of l e g a l e n t i t y t h a t Ponderosa R e a l t y i s o r was. From t h e c a p t i o n , however, i t might be assumed t h a t Ponderosa R e a l t y w a s a partnership o r j o i n t venture. When t h e r e m a i n i n g p a r t i e s f i l e d answers, t h e y a d o p t e d

t h e c a p t i o n o f t h e c o m p l a i n t naming t h e Paynes under t h e

s t y l e of "d/b/a Ponderosa R e a l t y . " A s such, t h e y , including "THE COURT: Very well. " Following the noon recess, when counsel were in the District Court's chambers, the attorney for Ponderosa Realty brought the subject up again: "MR. BALDASSIN: I have two requests. First one is, at an earlier conference in chambers the Defendants, Robert Payne and James Payne, were dismissed as parties Defendant; in discussing the matter with them, they were a little unsure as to the legal implications of that, so I have asked counsel whether we could go on the record and formally stipulate that the Defendants, Robert Payne and James Payne, are hereafter dismissed or hereby dismissed with prejudice. "MR. MILODRAGOVICH: We have no objection. "MR. SWARTLEY: I will stipulate to that. "THE COURT: Very well, the names of Robert and James Payne will be dismissed with prejudice." At the close of the plaintiffs' case in the jury trial, counsel for Ponderosa Realty moved, and the District Court ordered, that Ponderosa Realty be dismissed as a party defendant on the basis of this Court's ruling in State ex rel. City of Havre v. ~istrictCourt (1980), - Mont .- I

The cause was thereafter submitted to the jury as between Roger and Karen White, as plaintiffs, and Frank Lobdell, Kathryn Lobdell and Fidelity Real Estate as defendants. The jury returned a special verdict in which it was determined that the Lobdells were not guilty of any fraud or negligence in connection with the sale to the Whites. The jury found that Fidelity Real Estate was guilty of fraud and negligence, and found Robert and Karen white's damages in the sum of $10,255.00. In attributing negligence, they found Fidelity Real Estate 40 percent negligent, and "other parties" 60 percent negligent. They also found that Fidelity Real Estate was the agent of the Whites. action might be subject to a motion for misjoinder, but Rule 21, M.R.Civ.P. provides that a misjoinder of the parties is not a ground for dismissal and that parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. The court in this case simply added a party, the corporation, and dropped a party, the alleged copartnership. In addition, under the state of the record here, at the time of the purported dismissal with prejudice by the District Court, the Paynes had earlier been eliminated from the cause as party defendants by an order of the court. Therefore, those parties were not before the court for a dismissal with prejudice. In view of the state of the record, and the circumstances under which Ponderosa Realty was substituted as a defendant corporate entity in this cause, it is not necessary for to review our decision in - -of Havre, supra. City The case is not applicable here. The order of the District Court dismissing Ponderosa Realty as a corporate entity must therefore be vacated, and the cause sent back for retrial between the Whites as plaintiffs and Fidelity Real Estate and Ponderosa Realty as defendants. As to the Lobdell defendants, a jury has already determined that they were not negligent or fraudulent in connection with the sale of the property to the Whites. Moreover, neither by appeal nor by cross-appeal does any party raise any issue as to the propriety of the judgment in favor of the Lobdell defendants. Since this cause must be retried, we discuss the remaining issues raised by the appellant only for the guidance of the District Court. Ponderosa Realty, cross-claimed against Fidelity Real Estate for any liability that might be found against them in the suit. In none of the responsive pleadings did the other defendants, including Ponderosa Realty, raise the status of Ponderosa Realty as a legal entity, either through answer or by special defense. The pretrial order of the District Court continued the caption adopted from the original complaint, showing Ponderosa Realty as the "d/b/aw defendant. In the 4 defendants. contentions in the pretrial order, there is nothing as to the status of Ponderosa Realty. In State ex rel. City of Havre v. District Court (1980),

- Mont . -, 609 P.2d 275, 37 St-Rep. 552, this Court sustained an order of the District Court granting summary judgment in favor of the City of Havre and Hill County upon the ground that since the plaintiff had earlier dismissed with prejudice his claim against an agent or employee of the city and county, the summary judgment was proper because the liability of the city and county could only be vicarious or derivative. It was on the authority of that holding that the District Court in the case at bar decided that the dismissal with prejudice of James Payne and Robert Payne, in effect, was a dismissal of Ponderosa Realty, since the corporation could only be liable through the actions of its employees or agents. We determine, however, that the - -of Havre rationale City was improperly applied in this case. What occurred here was not a substantive dismissal with prejudice of an agent or employee, but rather the substitution of a proper party before the court. The District Court simply struck the entity of a copartnership and inserted the entity of a corporation. If the corporation had not been added, the service. Under the instruments that are in evidence in this case, each of the realtor agencies were acting as agents for the sellers, independent of one another, except for the duty of dividing the commission if the property was sold by a realtor other than the original listing agency. Since the cause will be retried, there is no necessity to discuss the other issues raised by the appellant. Accordingly this cause is affirmed as to the judgment in favor of Frank Lobdell and Kathryn Lobdell; it is reversed and remanded for a new trial as to the defendants Fidelity Real Estate and Ponderosa Realty; and the order of the District Court dismissing Ponderosa Realty with prejudice is vacated. Costs of appeal shall be borne by Ponderosa Realty.

We Concur:

p i e £ Justice We have no issue before us as to Fidelity's right of indemnity against Ponderosa Realty since such issue was not raised in the case below, but only upon appeal. Chadwick v. , Giberson (1980), - Mont. - 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726. After remittitur, Fidelity may move to amend its pleadings with respect to indemnity against Ponderosa Realty, but that is a motion which will be addressed to the sound discretion of the District Court. Rule 15(b), M.R.Civ.P.; Reilly v. Maw (1965), 146 Mont. 145, 156, 405 P.2d 440, 447. There should be no issue submitted to the jury as to whether one of the realtor agencies is an agent or subagent of the other. Under the listing agreement signed by Frank G. Lobdell, Ponderosa Realty was given an exclusive listing to sell the property, and in it Lobdell agreed that in the event that "[Ponderosa Realty] or any broker cooperating with [Ponderosa Realty] shall find a buyer ... I hereby agree to pay you in cash for your services and commission equal in amount to 6% of said selling price." The listing

agreement further authorized Ponderosa Realty to list the property with any multiple listing service at Ponderosa's expense and to accept the assistance and cooperation of other brokers. When the Whites signed the earnest money receipt and agreement to purchase, on January 29, 1979, they agreed in writing to purchase the property at the price stated and gave Fidelity Real Estate one day to secure the sellers' acceptance. The sellers accepted, and agreed to pay a commission to Fidelity of $4,085.00 for services rendered. The division of the realtor's fee was simply a matter of agreement between realtors utilizing the multiple listing Mr. J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n .

P l a i n t i f f s went t o t r i a l a g a i n s t Frank L o b d e l l , Kathryn

L o b d e l l , R o b e r t Payne, James Payne, Ponderosa R e a l t y and

F i d e l i t y Real E s t a t e . Ponderosa R e a l t y was o r i g i n a l l y sued

a s a p a r t n e r s h i p a s i n d i c a t e d by t h e c o l l o q u y s e t f o r t h i n

t h e majority opinion. That business w a s subsequently discovered

t o be a c o r p o r a t e e n t i t y . During t r i a l , R o b e r t Payne and

James Payne w e r e d i s m i s s e d w i t h p r e j u d i c e . The t r i a l c o u r t

t h e r e a f t e r d i s m i s s e d t h e i r employer, Ponderosa R e a l t y , on

t h e b a s i s t h a t t h e l i a b i l i t y of Ponderosa R e a l t y was d e r i v a t i v e ;

t h a t a d i s m i s s a l w i t h p r e j u d i c e i n f a v o r of R o b e r t Payne and

James Payne a d j u d i c a t e d l i a b i l i t y i n t h e i r f a v o r and t h e r e b y

a d j u d i c a t e d t h e l i a b i l i t y of t h e i r employer, Ponderosa

Realty. The t r i a l c o u r t ' s d e c i s i o n w a s b a s e d upon S t a t e e x

r e l . C i t y of Havre v. D i s t r i c t C o u r t ( 1 9 8 0 ) , Mont . I

609 P.2d 275, 3 7 St.Rep. 552.

The m a j o r i t y o p i n i o n a t t e m p t s t o d i s t i n g u i s h t h i s c a s e

from S t a t e - -l . C i t y - Havre on t h e b a s i s t h a t i n t h e ex r e of

c a s e a t b a r , t h e r e a c t u a l l y was a s u b s t i t u t i o n of p a r t i e s

r a t h e r t h a n t h e d i s m i s s a l of one d e f e n d a n t . The d i s t i n c t i o n

i s without a difference. T h i s c a s e i s c o n t r o l l e d by S t a t e

- -l . -t-o f Havre w h e r e i n t h i s C o u r t s a i d : ex r e Ci y

"Therefore, a s t i p u l a t i o n of dismissal with p r e j u d i c e of a d e f e n d a n t i s tantamount t o a judgment on t h e m e r i t s ; and a c c o r d i n g l y , such a d i s m i s s a l w i t h p r e j u d i c e i s - res judicata a s t o every i s s u e reasonably r a i s e d by t h e p l e a d i n g s . Under t h e d o c t r i n e of r e s p o n d e a t s u p e r i o r , a n employer d e f e n d a n t ' s l i a b i l i t y i s v i c a r i o u s o r d e r i v a t i v e and does n o t a r i s e u n t i l a n employee a c t s n e g l i g e n t l y w i t h i n t h e s c o p e o f h i s employment. A d i s m i s - s a l of a c l a i m w i t h p r e j u d i c e of a n employee i s e q u i v a l e n t t o a f i n d i n g t h a t t h e employee was n o t n e g l i g e n t . Under t h e d o c t r i n e of r e s p o n d e a t s u p e r i o r , such a d i s m i s s a l of a n employee o p e r a t e s t o e x o n e r a t e t h e employer. ---- p r e j u d i c e - - - and w i l l n o t look behind on i t s f a c e , - T h i s C o u r t w i l l look a t t h e d i s m i s s a l w i t h 1 -- - t h e words ' w i t h p r e j u d i c e . 1 1 (Emphasis a d d e d . ) T h i s c a s e c a n n o t be r e c o n c i l e d w i t h t h e h o l d i n g s e t

f o r t h above. The t r i a l b a r i s , a s t h e r e s u l t o f t h i s d e c i s i o n ,

b e i n g l e f t w i t h no g u i d e l i n e s f o r f u t u r e a c t i o n . In State

- -l . ex r e City of Havre, where t h e d i s m i s s e d p a r t y was a

government employee and t h e r e b y immune from e x e c u t i o n under

t h e t o r t c l a i m s law, t h e c o u r t f a s h i o n e d a i n f l e x i b l e r u l e

t o d e f e a t t h e p l a i n t i f f ' s claim. The c o u r t emphasized i t

would n o t look behind t h e words " w i t h p r e j u d i c e " t o d e t e r m i n e

what f a c t s gave r i s e t o t h e d i s m i s s a l . Had t h e c o u r t looked

t o t h o s e f a c t s , i t would have found: (1) t h e employee who

was d i s m i s s e d s h o u l d n o t have been j o i n e d i n t h e f i r s t p l a c e

b e c a u s e he was immune from e x e c u t i o n under t h e t o r t c l a i m s

law, ( 2 ) no money was p a i d f o r t h e d i s m i s s a l of t h e employee,

and ( 3 ) i t was t h e i n t e n t of a l l p a r t i e s t o t h e s t i p u l a t i o n

of d i s m i s s a l w i t h p r e j u d i c e t h a t t h e employee n o t be p u t

t h r o u g h t h e expense and trauma of a t r i a l when no r e c o v e r y

c o u l d be had a g a i n s t t h e employee.

S t a t e e x g&. City f o Havre, s u p r a , h a s n o t been o v e r r u l e d

and c o n t r o l s t h e outcome h e r e . The D i s t r i c t C o u r t had no

a l t e r n a t i v e b u t t o d i s m i s s Ponderosa R e a l t y a s a p a r t y

defendant.

-- I f t h i s C o u r t had o v e r r u l e d S t a t e e x r e l . C i t y of - Havre, s u p r a , t h e r e b y a u t h o r i z i n g t h e c o n t i n u a t i o n of a

c l a i m a g a i n s t Ponderosa R e a l t y , t h e v e r d i c t i n f a v o r of t h i s

p l a i n t i f f c o u l d n o t b e d i s t u r b e d under t h e law. Only t h e

p l a i n t i f f h a s any s t a n d i n g t o c l a i m p r e j u d i c e from t h e

d i s m i s s a l of Ponderosa R e a l t y . The t h e o r y by which F i d e l i t y

c l a i m s p r e j u d i c e from s u c h d i s m i s s a l i s t h a t F i d e l i t y t h e r e b y

becomes r e s p o n s i b l e t o pay t h e e n t i r e judgment. Of c o u r s e ,

under w e l l e s t a b l i s h e d l e g a l p r i n c i p l e s , t h i s d o e s n o t

provide a b a s i s f o r F i d e l i t y t o r a i s e t h e dismissal a s error.

P l a i n t i f f s b r o u g h t t h i s a c t i o n a g a i n s t t h e s e two r e a l

e s t a t e f i r m s a l l e g i n g them t o be j o i n t t o r t f e a s o r s . The

pre-trial o r d e r s t a t e s t h a t t h e l i s t i n g a g e n t , Ponderosa

R e a l t y , was g u i l t y of n e g l i g e n c e i n f a i l i n g t o i n v e s t i g a t e

and d e t e r m i n e t h a t t h e l o t s i z e was n o t a s r e p r e s e n t e d .

L i k e w i s e , p l a i n t i f f s contended t h a t d e f e n d a n t F i d e l i t y Real

E s t a t e was n e g l i g e n t i n f a i l i n g t o make s u c h an i n v e s t i g a t i o n

p r i o r t o t h e time i t s o l d t h e property. The l i a b i l i t y of

Ponderosa R e a l t y d o e s n o t depend upon t h e l i a b i l i t y of

F i d e l i t y Real E s t a t e , nor i s t h e o p p o s i t e t r u e . The two

d e f e n d a n t s were b e i n g pursued a s j o i n t t o r t f e a s o r s . Their

l i a b i l i t y i s j o i n t and s e v e r a l . The p l a i n t i f f s c o u l d r e c o v e r

a g a i n s t e i t h e r o r both. Once t h e p l a i n t i f f s c o l l e c t e d t h e

judgment t h e y would be a b l e t o s a t i s f y t h a t judgment a g a i n s t

one o r a l l of t h e d e f e n d a n t s .

I n t h i s c a s e , p l a i n t i f f s were f r e e t o s u e e i t h e r F i d e l i t y

Real E s t a t e o r Ponderosa R e a l t y o r b o t h . P l a i n t i f f s were

f r e e t o c o l l e c t t h e judgment a g a i n s t e i t h e r o r b o t h and

s a t i s f y t h a t judgment a g a i n s t e i t h e r o r b o t h . his i s t h e

v e r y e s s e n c e of j o i n t and s e v e r a l l i a b i l i t y .

I n returning t h e v e r d i c t i n t h i s case, the jury, in

special interrogatories, found t h a t F i d e l i t y Real E s t a t e was

g u i l t y of b o t h n e g l i g e n c e and f r a u d . The j u r y e x o n e r a t e d

t h e owners of t h e l o t , Frank and Kathryn ~ o b d e l l .

The e f f e c t of t h i s C o u r t ' s d e c i s i o n i s t o s a y t h a t

F i d e l i t y R e a l E s t a t e , found by t h e j u r y t o be g u i l t y of

n e g l i g e n c e and c o n s t r u c t i v e f r a u d i s e n t i t l e d t o c o n t r i b u t i o n

from Ponderosa R e a l t y , t h e a b s e n t d e f e n d a n t . The e s s e n c e of

t h e C o u r t ' s h o l d i n g i s t h a t F i d e l i t y Real E s t a t e s h o u l d n o t

have t o b e a r t h e e n t i r e burden of t h i s judgment, b u t s h o u l d h a v e t h e o p p o r t u n i t y t o have a n o t h e r d e f e n d a n t s h a r e i n t h e

load.

The h o l d i n g of t h i s C o u r t v i o l a t e s i t s p r e v i o u s d e c i s i o n

i n C o n s o l i d a t e d F r e i g h t w a y s v . O s i e r (1979) , Mont.

-I - P. 2d , 36 St.Rep. 1810. I n a case c e r t i f i e d

from F e d e r a l D i s t r i c t C o u r t , t h i s C o u r t h e l d t h a t , where t h e

p l a i n t i f f e l e c t e d t o sue b u t one defendant, t h a t defendant

c o u l d n o t implead a n o t h e r p o t e n t i a l l y n e g l i g e n t d e f e n d a n t

f o r purpose of seeking c o n t r i b u t i o n i n t h e p l a i n t i f f ' s c a s e .

Now t h i s C o u r t sees f i t t o v a c a t e p l a i n t i f f s ' judgment

a g a i n s t o n e d e f e n d a n t on t h e b a s i s t h a t t h e d e f e n d a n t a g a i n s t

whom judgment w a s r e n d e r e d , i s e n t i t l e d t o have a n o t h e r

p o t e n t i a l l y l i a b l e d e f e n d a n t made a p a r t y t o t h e a c t i o n .

The r e s u l t i s t o f o r c e t h e p l a i n t i f f s t o t r y t h e i r c a s e

a g a i n a l t h o u g h no t r i a l e r r o r i n u r e d t o p l a i n t i f f s ' b e n e f i t .

S u r e l y t h i s must b e a f i r s t i n t h e a n n a l s o f American J u r i s p r u d e n c e .

I would a f f i r m .