Ludvik v. James S. Jackson Co., Inc.

ORDER DENYING PETITION FOR REHEARING

This case came on before the Court upon the Petition for Rehearing filed herein by James S. Jackson Company, Inc., appellee in Case No. 5426 and appellant in Case No. 5427, together with the Petitioner’s Brief in Support of Petition for Rehearing, and the Court having considered carefully the matters presented in those documents finds that the Petition for Rehearing should be denied, and it therefore is

ORDERED that the Petition for Rehearing filed herein by James S. Jackson Company, Inc., be, and the same hereby is, denied.

RAPER, Justice,

dissenting, with whom TAYLOR, District Judge, joins.

I would grant the petition for rehearing in this instance because “there is a reasonable probability that the court may have arrived at an erroneous conclusion or overlooked some' important question or matter necessary to a correct decision.” Elmer v. State, Wyo., 466 P.2d 375, 376 (1970). From the time of oral arguments until the publication of the majority and dissenting opinions, this case has been a thorn in the side of this court. It has been an extraordinarily difficult case. In the end, the ease turned upon the majority’s interpretation of the Compromise and Settlement Agreement entered into during the Indiana litigation. The parties had neither briefed nor discussed this issue in advance. This court presumed to decide an issue without any guidance or assistance from the parties. Now the losing party has come forward with case authority that indicates that the majority acted in haste, but the majority refuses to consider the possibility that it may have been wrong. I believe that the majority should reconsider and let the parties address the issue more fully.

Personally, I would have affirmed without having reached the agreement issue as I *1161noted in my dissent. I expressed my belief that there existed several bases for affirmance. And, I think that petition admirably covers those grounds. But is is not sympathies with petitioner’s position that leads me to vote in favor of a rehearing, but it is my belief that this court must carefully and cautiously decide issues before it. And when on occasion we prove our fallibility in deciding an issue without the assistance of the parties and as a result fail to find and consider opposing authorities, we should be willing to at least consider the possibility of error and reconsider our decision. It is on that basis that I favor a rehearing in this case.