dissenting.
I.
Although the November 1985 majority opinion of this Court may read well in the abstract, I fear it will be totally unworkable in the actual trial setting, from the standpoint of both the trial judge and the litigating parties, and if this case is permitted to stand, it will do great violence to the orderly trial of this type of case. In addition to providing no real guidance as to the circumstances under which the phantom defendant is to be added to the verdict form, the ruling of the case would seem to run contrary to the salutory policy of Idaho law which encourages settlements. I will address each consideration in turn.
The core issue of this case, which was not addressed by the present majority opinion, is how to make a comparison of responsibility in strict liability cases work in a meaningful manner. The following are considerations:
(a) Can the adversary system work well when we do not truly have adversaries presenting the issues in these kinds of cases?
(b) Normally, the issues to be tried in a case are those “framed by the pleadings,” and consideration of all other matters is irrelevant and improper. In this case, when it finally went to trial *569there was no pleading by the plaintiff alleging negligence of either the rim manufacturer or the mounting machine manufacturer and there was no cross-claim or third-party claim by any defendant alleging any negligence on the part of those two “phantoms” (Uniroyal did have an affirmative defense). Thus, under our pleading and practice system, (although only notice pleading is required), no party was formally in a position where they had to either prove or disprove the negligence of the two phantoms on the basis of a complaint and answer.
(c) In all fairness to the defendant Uniroyal, if, in fact, Uniroyal desired to reduce its ultimate exposure by presenting the negligence of the two phantoms, it had three opportunities to do so, one of which still remains, that is:
(1) Initially when the phantoms were defendants prior to settlement, the matter would have been fully litigated had Uniroyal filed a cross-claim.
(2) When the settlement was made with the phantoms on the eve of the trial, Uniroyal had the option of, at that point, asking the trial court for leave to file a cross-claim against either or both of the phantoms and it opted not to do so. It would have been fully appropriate for the trial court to condition the dismissal of the two defendants on leave and opportunity for Uniroyal to get its cross-complaints filed. Since all parties were theoretically prepared for trial, it probably would not have required even a delay in the commencement of the trial, but if it would have, the court could have granted a recess if Uniroyal had asked it to do so.
(3) Even having failed to exercise the option of filing a cross-complaint, Uniroyal still to this day has a procedure under the comparative negligence statutes where it can seek contribution, because the cause of action for contribution arises only after Uniroyal is found liable in the first instance and it can now bring its lawsuit against the two phantoms to ascertain their negligence and contribution.
Although the language of the present majority opinion might sound good in the antiseptic atmosphere of the appellate writing process, it really gives the trial court no realistic and workable guideline as to when to include the phantom. Just how much has to be said, by what kind of a witness, about the possible negligent contribution to the accident by a non-party before the judge must add that non-party to the verdict form? In effect, our present decision merely says that on the facts of this case we think the mounting machine and the wheel rim were clearly a cause, but we really articulate no standard by which a trial judge can make that determination.
In the instant case, all we have is the trial judge stating:
“... That the evidence does not — just did not justify instructing the jury on any defects in the other products used in the case, other than the Uniroyal tire, ...”
The trial judge having made that finding, it is a bit peculiar that we overrule him.
In short, the opinion leaves the procedure for trying one of these cases in total disarray as it asserts a rule that if some witness makes a statement which, taken alone, would result in a “prima facie case,” then a non-party must be added to the verdict form. In many cases, by virtue of depositions or rules of law, the trial judge and attorneys are well aware of the fact that the prima facie case would be rebutted by other testimony or by rules of law applicable thereto. But since the matter is not placed in issue by the pleadings, it will not get litigated.
I suppose that it is possible that, when during the course of a trial, some witness brings up something tending to make a prima facie case against some non-party, the trial can stop in midstream while counsel asks the court to then and there rule as to whether counsel had best get prepared to prove or disprove a case against that phantom. We then would have to excuse *570the jury, recess the trial and give counsel opportunity to get prepared on an issue not framed by any party. Such would seem to be a cumbersome way to operate a trial given that, in this case, Uniroyal had the right to join the phantom defendants as third-party defendants or cross-defendants. It is indeed ironic that this state, long a leader in innovation designed to encourage efficient and expeditious litigation, will now open itself to this kind of abuse of the judicial process.
What does the resulting verdict, with the phantom defendants included, ultimately mean? Are those non-party phantoms bound by the verdict in any way? Can the plaintiff collect from either one of them? Can the true defendant get contribution based on that verdict? The answer to all three questions is “no.” The liability of the phantoms will probably have to be litigated again.
It is appropriate to further consider the effect of this decision on the practice of settling lawsuits. It is true that there remains the device of taking a covenant not to execute, with the settling defendant then sitting through the trial and participating in (lengthening) the proceedings. However, why should such practice be encouraged, especially in those cases where on the eve of the trial the plaintiff recognizes that he only has a case of doubtful or possibly no validity as against one or more defendants?
Our rule of law should be that the “phantom defendant” can be included on the special verdict form only in those cases where the law prohibits joinder in the action (such as liability of an employer barred by the worker’s compensation statute). In all other cases, a defendant seeking contribution or appointment of liability should join the other defendants under a cross-claim or third-party complaint.
II.
Having noted in Part I hereinabove, that the case proceeded to trial before the jury without any complaint, cross-complaint, or third-party complaint charging either Kelsey-Hayes Company or the Coats Company, Inc. with any responsibility for the accident, it is interesting to note what did remain in the pleadings and invite the attention of court and counsel to the fact that this problem might not be before us had attention been given to the status of the pleadings following the dismissal of the two defendants.
The answer of Uniroyal to the plaintiffs’ complaint states in Paragraph V:
The allegations contained in Paragraphs VIII, X and XI speak to acts or omissions of Defendants other than Defendant Uniroyal, Inc., and therefore Defendant Uniroyal, Inc. takes no position on said allegations.
Paragraph VIII charges Kelsey-Hayes, Paragraph IX charges Uniroyal, and Paragraph X charges the Coats Company, Inc. Accordingly, the status of the Uniroyal answer was that it was taking no position at all on the negligence or strict liability alleged against the two phantom defendants. Therefore, on the basis of its own pleadings, Uniroyal had no right to insist that they be included on the jury verdict, because such would be totally inconsistnet with its position that it “takes no position on said allegation.”
Unfortunately, the confusion does not end with Paragraph V of the answer, because the defendant, Uniroyal, was permitted to maintain a “first affirmative defense” which was totally inconsistent with Paragraph V of the answer, the defense reading:
As a further, separate and affirmative defense to Counts One through Five, inclusive, of Plaintiffs’ Complaint, this answering Defendant alleges that any alleged injury or alleged damages suffered by the Plaintiffs were directly and proximately caused by the negligent acts and/or omissions of Kelsey-Hayes Company, the Coats Company, Inc., Hennesey Industries, the Tire and Rim Association, Inc., and Terry Burnan, or their agents, servants or employees.
*571The pleading of that affirmative defense brings into focus that which I shall address in Part III of this dissent.
At this point, I would note that it is axiomatic (or at least has been until this majority opinion came out) that a party asserting an affirmative defense has the burden of proving the matters therein contained. That burden of proof includes proving all elements of the “cause of action” or defense. As the trial court and counsel noted in their discussion relative to the propriety of including the phantom defendants, there was no evidence presented by any party relative to either (1) the date the equipment was manufactured, or (2) the standards which applied in the industry at that time. Thus, on the face of this record, it is clear that Uniroyal did not meet the burden of proof required to establish its affirmative defense. The trial court was correct in not including the two phantoms on the jury verdict form.
III.
I come now to a consideration of unfortunate and loose wording in the majority opinion which, if not thoughtfully and carefully analyzed by trial judges and lawyers, will confound the trial of most multi-party actions. This problem arises from our failure to remember how the presentation of evidence ultimately culminates in general instructions to the jury which further result in the presentation of a special verdict form in comparative negligence cases.
I quite agree with Justice Bakes in this opinion and Justice Donaldson, speaking for the Court in Lasselle v. Special Products Co., 106 Idaho 170, 677 P.2d 483 (1983), in the proposition that the jury should have the opportunity to compare the fault of all culpable parties, including both those defendants charged under negligence and those charged under strict liability. However, this case goes beyond Lasselle in a way that is subtle, insidious, and totally unworkable from the standpoint of those judges and lawyers attempting to present cases to juries, for reasons I am about to articulate.
In the instant case, if the settlement with the phantom defendants had not been made, and the case had been tried against all three defendants and ultimately submitted to the jury against all three defendants, a special verdict form would have been given asking the following question as to each.
QUESTION NO. 1: Was the defendant Uniroyal negligent, which negligence was the proximate cause of the accident?
QUESTION NO. 2: Was the defendant, Coats Company negligent, which negligence was the proximate cause of the accident?
QUESTION NO. 3: Was the defendant, Kelsey-Hayes negligent, which negligence was the proximate cause of the accident?
QUESTION NO. 4: Was the plaintiff, Jerry Vannoy, negligent, which negligence was the proximate cause of the accident?
The Idaho special verdict form then proceeds to ask the jury to apportion 100% of the negligence among the parties to whom affirmative “yes” answers were given to the above four questions.
Now comes the kicker! Those four questions would be propounded to the jury on the basis of all of the instructions which preceded.
Included in those instructions which preceded would be as to each defendant a requirement that the jury determine the merit of its defenses and if any of those defendants prevailed by convincing the jury of any of its defenses, there would have been a “no” answer to the appropriate one of the first three questions and the jury would not have apportioned any percentage to that defendant.
In a word, we are asking the jury to compare fault. Thus, the rationale of Sun Valley Airlines, Inc. of comparing those parties for whom culpability, blameworthiness or some form of fault has been determined in the following language quoted by the majority opinion.
*572“Once culpability,- blameworthiness or some form of fault is determined by the trier of fact to have occurred, then the labels denoting the ‘quality’ of the act or omission, whether it be strict liability, negligence, negligence per se, etc., becomes unimportant. Thus, the underlying issue in each case is to analyze and compare the causal conduct of each party, regardless of its label.” Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603 n. 5 (1976). (Emphasis supplied).
Note that we do not ask the jury to fix a percentage of negligence upon every party for whom the evidence shows some prima facie case of negligence where the defendant has shown a defense which rebuts the prima facie case of causation.
In other words, there is not one set of questions on the special verdict form apportioning “prima facie negligences” and a second set of questions apportioning fault, culpability, and blameworthiness. Stated again, the jury only apportions negligence among those who are responsible to the plaintiff under the mandate of all of the instructions including consideration of the defenses.
The foregoing points out the serious mischief of the majority opinion. Apparently, Justice Bakes is instructing Idaho’s trial judges to ignore the instructions as a whole, and now place upon the special verdict form all individuals or corporations, whether a party or not, for whom a prima facie case of negligence has been made out by the testimony of some witness.
His opinion contains the following language at page 15:
In determining whether or not to include additional parties on the verdict form, the question is not whether a judgment would or could be rendered against that person, but whether or not his conduct or his product caused or contributed to the accident and injuries. Thus, in the case of the Coats Company and Kelsey-Hayes, the issue is whether the tire mounting machine and the wheel rim were the cause, in whole or in part, of the accident and injuries to the plaintiffs. If' they were, the special verdict form should require the jury to allocate that causation to them, regardless of whether the Coats Company and Kelsey-Hayes could have a judgment rendered against them as a result of the damage caused by their tire mounting machine and the wheel rim.
That has never been the rule of law in Idaho, it has never been the way special verdict forms are drafted in Idaho since 1971, and I am fearful that Idaho’s trial judges and lawyers are going to wonder whether any of us remember anything about the nuts and bolts of presenting a case to the jury. Apparently, if this majority opinion is to be followed, Idaho trial judges are going to have to submit two sets of special verdict forms to the jury, one comparing prima facie cause testimony and a second comparing fault.
IV.
Part I of the majority opinion concludes with the following sentence, which is a jewel:
“We need not, and do not, decide in this action to what extent the judgment or the issues actually litigated would be binding upon the non-parties Coats and Kelsey-Hayes, in subsequent litigation.”
We are required under the practice of this Court and a statute to decide all issues necessary to ultimate resolution of the case when it is re-tried. Without knowing the answer to the question posed, the parties cannot know how to proceed in their actions for contribution and indemnification which flow from this case. Obviously, the answer to the issue is that the judgment is not binding on non-parties. To admit that would be to force us to acknowledge the problems I have set forth in Parts I, II and III of this dissent and would also force us to acknowledge that we are, by this decision, wasting judicial resources on the litigation of issues which have no binding effect and result in nothing but the incurrence of expensive litigation of non-issues *573by the parties. We should step back and re-think this whole situation.
BISTLINE, J., concurs.