(dissenting).
I am unable to agree with the opinion of the majority and the disposition of the case made by them.
My disagreement arises out of the states ment to the effect that the “judgment by the injured persons against Rio Grande alone does not operate as a discharge of other joint tortfeasors.” In the posture of this case, I am inclined to think that it would discharge them and, if so, the result reached concerning the right to seek contribution is incorrect. I recognize, of course, that Stahmann was absolved of guilt, but on this appeal Rio Grande asserts this was error.
Section 24-1-13, N.M.S.A. 1953, cited in support of the statement, and § 24-1-12(2), N.M.S.A. 1953, certainly can’t be read to be applicable when suit is against two alleged tortfeasors and one is found liable, while the other is exonerated. This is the situation here, except that plaintiffs sued only one of them (Rio Grande), and the other (Stahmann) was made a third-party defendant.
It is my considered conclusion that just because plaintiffs did not formally seek a judgment in a suit against Stahmann, it does not necessarily follow that their right to do so has not been terminated. Both Williams v. Miller, 58 N.M. 472, 272 P.2d 676 (1954), and Salazar v. Murphy, 66 N. M. 25, 340 P.2d 1075 (1959), arrived at the result reached because of the peculiar situations present in each case. In Salazar we considered the case of Falls Industries, Inc. v. Consolidated Chemical Industries, Inc., 258 F.2d 277 (5th Cir. 1958). The cases were distinguished on their facts, but we said:
“The difference between the situation there and here should be evident. Here, the third-party defendant did not answer or put in issue any of the allegations of plaintiff’s complaint; the case was not tried and proof made between the parties ; the prior action was dismissed upon failure of plaintiff to appear for trial. Under no possible theory could the provision of Rule 15(b), F.R.C.P., which provides for amendment to conform to evidence when issues not raised by pleadings are tried by express or implied consent, be applicable. This was the foundation of the decision of the Falls casej supra, and differs Materially from the situation here present. There, the trial had been had on the merits— here, it has not. There, although by the pleadings no relief had been sought by plaintiff against third-party defendant, inasmuch as all evidence had been presented without objection, and a judgment against third-party defendant was indicated, the pleadings were considered amended to conform with the proof. This situation does not subsist here.
“It is not necessary for us to decide if in the instant case, since diversity was present between plaintiff and third-party defendant in the federal court, upon trial of the merits, all issues arising out of the claim would have been res judicata or -estopped by judgment, because no claim was asserted by plaintiff against third-party, defendant, and any issues present between them were not litigated. If they had been, the Falls Industries case, supra, would be in point. * * *”
An examination of the record here leads me to the conclusion that the rule in the Falls Industries case, supra, approved in Salazar; supra, for application in a proper case, is properly applicable here.
Concerning application of the rule, the following cases are helpful: Frankel v. Back, 37 F.R.D. 545 (E.D.Pa.1965); Holmes v. Capital Transit Co., 148 A.2d 788 (D.C.Mun.Ct.App.1959); Ashford v. Burnham Aviation Service, Inc., 162 Colo. 582, 427 P.2d 875 (1967); see, also, 12 Ala.L.Rev. 209 (1959-60). A case very similar to our case is Brotman v. McNamara, 181 Md. 224, 29 A.2d 264 (1942), where, it seems to me, the two dissenters were correct and anticipated the holding in the Falls Industries case, supra.
I would add a word of caution concerning what is said in the opinion about the case of Hackett v. Hyson, 72 R.I. 132, 48 A.2d 353 (1946), 166 A.L.R. 1096. In Herrera v. Uhl, 80 N.M. 140, 452 P.2d 474 (1969), the court assumed that with our adoption of the Uniform Contribution Among Tortfeasors Act, we had also adopted the prior interpretation of that act by one state (Rhode Island). Although this rule applies where a legislative act of a state is copied, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Gray v. Armijo, 70 N.M. 245, 372 P.2d 821 (1962), I do not understand the rule to apply to legislation prepared by the Commission on Uniform State Laws. The majority here, with only passing notice of Herrera v. Uhl, supra, announce a preference to the rule of Hackett v. Hyson, supra, to that adopted in Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1958). I would here note my feeling that the reasoning of Hilbert v. Roth, supra, is preferable to that of Hackett v. Hyson, supra. Maryland has recently so ruled. Grantham v. Board of County Commissioners, 251 Md. 28, 246 A.2d 548 (1968). See, also, Theobald v. Kenney’s Suburban House, Inc., 48 N.J. 203, 225 A.2d 10 (1966).
Based on the foregoing, I am unable to agree with the opinion of the majority. I have given no consideration to the question of whether the trial court ruled correctly on the issue of Stahmann’s negligence.
I respectfully dissent.