No. 12166 INTHE SUPRME COURT OF THE STATE OF MONTANA 1972

ARNOLD B, MORRIS, Plaintiff and Appellant,

-VS

# - LAWRENCE J. McCARTHY et al., Defendants and Respondents.

Appeal from: District Court of the Fourth JudicialDistrict, Honorable Emmet Glore, Judge presiding, Counsel of Record: For Appellant: William Dee Morris argued, Helena, Montana. For Respondent: Alex C. Morrison argued, Plains, Montana,

Submitted: April 24, 1972 Decided: 

### MAY 9

# -1% Filed: 

### MAY9

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*% I.Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal results from the dismissal of plaintiff's complaint by the district court of the fourth judicial district, county of Sanders. Plaintiff,Arnold B, Morris, filed a complaint seeking damages against defendants alleging they disabled a D-7 Cat owned by plaintiff by draining all of its fuel and thus preventing the removal of the D-7 Cat from a mountainside before the radiatar froze causing the engine to be ruined. 

### lai in tiff's complaint was filed twelve days after a jury verdict in a case wherein the same issueswere raised. See McCarthy v. Morris, Mont

# . 9 P.2d 9 St. Rep, 

# . In McCarthy a stipulationwas entered by counsel for defendant,Bud Morris,wherein it was agreed: 

# "*** that whatever the outcome of this trial we would consider the damages to the Cat to be Bud Morris' and Arnold would waive, and will, any damages of his own, other thanwhat is our claimed loss of use and loss of the Cat. That is one thing he will do and be bound by the judgment in favor of or against Bud Morris in relation to the damages to the Cat,I I InMcCarthy the jury awarded no damages to Bud Morris on his counterclaim for damages to the D-7 Cat, and thus this actionwas instituted by Arnold Morris for alleged damages. The only issue presented here iswhether the court erred in dismissingplaintiff's complaint on the basis of the stipulation inMcCarthy, heretofore quoted, Plaintiff argues that under Rule 19,M.R.Civ.P., the trial court shouldhave allowed joinder of persons needed for the just adjudication of the case and failure to do so jeopardized the rights of plaintiff Arnold Morris. Further, that in the protection of Arnold 

### orris' rights, the court shouldhave followed Rule 15 (b) and (c), M.R.Civ.P., and at the conclusion ofthe case allowed the pleadings to be amended to conform to the proof. We find no merit in these arguments. In the first instance, in McCarthy all of the issues presented in the instant case were set forthby the pleadings there, as they pertained to the plaintiff here. InMcCarthy the plaintiffs (defendants here) never denied that Arnold Morris owned the D-7 Cat. The issue of damages to the D-7Cat was fully examined by the jury inMcCarthy and no award of damageswas given. InMcCarthy the trial court in its InstructionNo. 

### 18 stated: 

# "** * But if you do award damages to the defendant the award, if any,must be 

### (1) for damage to the Cat, which, if awarded,may not exceed the sum of seven thousand dollars, and (2) must be for loss of use of the D-7Cat, which, if awarded,may not exceed the sum of fifteen hundred dollars. The counsel agree these are the maximum limitswhich may be awarded, if you make such awards. Youmay award for damage to the Cat and for loss of use of the Cat, neithern either, or both,within the limits here set

# **

# *. Court's Instruction 18 fully advised the jury as to how it could award damages. The factual situation as to the ownership of the D-7Cat and what was done to itwas covered during the trial inMcCarthy and the jury found no damages due to de

### fendant, Bud Morris. The order of the district court dismissing the complaint is affirmed.
I\ 

# /'\ Associate Justice

, Chief Justice

~ssocidde Justices. 

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