on rehearing.
I continue to dissent on the basis of the earlier opinion above set out. On the rehearing about all that was new was a contention raised by Wolford that he is entitled to be subrogated to the Empeys’ cause of action against the Tankersleys. He cites 73 Am.Jur.2d, Subrogation, for that proposition. And that proposition as there stated seems to support his contention, wherein it is found:
“Subrogation in favor of an agent making food a loss to his principal has been allowed under various circumstances, as where he ... makes good a loss to the principal resulting from dealings with third persons____ The fact that an agent was negligent in causing loss to his principal will not defeat his right of subrogation.”
For Idaho authority we are cited to May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975), and a case from Washington, United Boat Builders, Inc. v. Tempo Products, 1 Wash. App. 177, 459 P.2d 958 (1969). While the authority which I mention, and other in the brief, appears reputable and persuasive, I cannot see in the record that this theory was relied upon or advanced in the trial court, or the first hearing. For those reasons we are not considering it now, or at least I so assume. More apparently, however, four members of the Court all remain firmly entrenched where we were when the rehearing was granted. In that manner, *1092with two plurality opinions, we have not made any new law; but we have unsettled the law insofar as the precedential value of Loomis v. Church is concerned. That case aptly applied to Tankersleys’ well-pleaded affirmative defense, an affirmative defense that has now been wholly ignored by the district court in the first instance, and now by most members of this Court. While the case has now been flitting about in this Court almost as long a time as expired before the Empeys discovered that as a result of Wolford’s handling of their transaction they had been shorted, it would seem that the plurality of Justices Donaldson and Bakes would attempt to explain away the affirmative defense, not to forget another primary Tankersley contention on appeal, i.e., that the trial court admitted all kinds of evidence, documentary and testimony, which was revelant hearsay.
I am reminded of a case a few years back where attorney Robert C. Huntley, expressed his disfavor with an opinion from this Court by referring us to the shortest passage in the Bible: John 11:35. The Tankersleys and their counsel may perhaps find comfort in the passage found at Luke 23:34.