No. 12166 

IN THE 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 Judicial District, 

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: MAY 9 - *% 

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 issues were raised. See 

McCarthy v. Morris, Mont . 9 P. 2d 9 St. 

Rep, . In McCarthy a stipulation was 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 than what 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 

In McCarthy the jury awarded no damages to Bud Morris on 

his counterclaim for damages to the D-7 Cat, and thus this 

action was instituted by Arnold Morris for alleged damages. 

The only issue presented here is whether the court erred 

in dismissing plaintiff's complaint on the basis of the stipulation in McCarthy, heretofore quoted, 

Plaintiff argues that under Rule 19, M.R.Civ.P., the trial 

court should have 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 should have followed Rule 15 (b) and (c), M.R.Civ.P., and at the conclusion of 
the 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 forth by the pleadings there, as they pertained to the plaintiff here. In McCarthy the plaintiffs (defendants here) never 

denied that Arnold Morris owned the D-7 Cat. The issue of damages 

to the D-7 Cat was fully examined by the jury in McCarthy and no 

award of damages was given. 

In McCarthy the trial court in its Instruction No. 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-7 Cat, which, if awarded, may not exceed the sum 

of fifteen hundred dollars. The counsel agree these 

are the maximum limits which may be awarded, if you 

make such awards. You may 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-7 Cat and what was done to it was covered during 

the trial in McCarthy and the jury found no damages due to def endant, Bud Morris. 

The order of the district court dismissing the complaint 

is affirmed. 

I\ 

/'\ Associate Justice 

, Chief Justice 

~ssocidde Justices. - 3 -