(dissenting).
Because I think this case is no different factually tiran Schneider v. Suhrmann, recently decided by us,1 I dissent. The main opinion concedes that the background facts are substantially the same, but says “only such additional matters as are essential to the separate treatment of this case” will be considered, the “significant difference” being a finding of agency here where none was found in the former.
Examination of plaintiff’s briefs in the former case makes it appear that all the facts recited in the main opinion were adduced in the Schneider case, except, perhaps, that Hoffman gave Suhrmann some credit for meat returned and appeared as a salesman on the suppliers’ invoices, both of which circumstances seem most immaterial and inconsequential.
In both cases, except for minor differences in paraphrasing identical interrogatories were given the jury. The one material here is as follows: “5(b). Would a reasonable prudent person in their (the suppliers) position have known that Suhr-mann would sell the sausage without processing it?”
In the Schneider case the jury answered “Yes.” Nonetheless the trial court refused to enter judgment against the suppliers on the ground that the evidence would not justify the verdict. We affirmed the trial court on that ground.
On practically identical evidence we now affirm, instead of reject, the same answer to the same interrogatory.
The question of agency, in my opinion makes no difference, if we are to be consistent, since we said the facts in the Schneider case imposed no liability on the suppliers and that the jury was wrong in saying the suppliers should have known that Suhrmann would sell adulterated meat, and therefore were liable. Now we say the jury is not wrong in saying the suppliers should have known the same thing. If we say the jury was wrong in finding agency there, how can we say it is right as to finding agency in this case on the same material facts?
In submitting that the facts relating to Hoffman’s dealings with Suhrmann in the one case cannot be distinguished materially from those in the other case, I refer to the briefs of the respective parties and the records in the two cases.
*89We made quite a to do in our former opinion of the fact that when Suhrmann started to process the meat himself, he testified as follows:
“Let me have it, prepare it as far as you are able and then deliver it to me, and I will finish it. I have an oven to smoke it, and I will take care of the rest. What you don’t — what you cannot do I will complete in my own business.” (Emphasis added.)
Such admission would seem to relieve the suppliers from liability and would seem to make our decision here quite out of harmony with our previous decision.
. 1938, 8 Utah 2d 35, 327 P.2d 822.