specially concurring:
I agree with the views expressed in the court’s opinion with regard to the Chapman and Cutler letter. I also agree that by approving and consenting to the entry of the order on December 11,1975, the defendants waived their right to express later dissatisfaction with the manner in which the case was disposed of. However, had the defendants not waived their rights to do so by their approval of the entry of the December 11, 1975, order, the defendants would, in my opinion, have been free to reject the settlement on the ground that after four life members withdrew from the class, it was not possible to dispose of the claim with prejudice to those four. My view is based on the portion of the settlement arrangements which provided that the proposed bylaws, which were an essential part of the settlement, would not become effective if this case was not “disposed of, with prejudice to the claims of the class upon whose behalf the complaint states it was brought, in a manner satisfactory to legal counsel to the hospital.”
For this reason I do not concur in that portion of the court’s opinion under the heading “Disposition Of The Class Suit In A Manner Satisfactory To Counsel For Defendants” which, as I read it, concludes that the settlement would have bound the defendants even had they not approved of the December 11, 1975, order. I believe, in fact, that the court’s opinion agrees with the views I state when it acknowledges that “upon the withdrawal of the objectors, counsel for the Hospital could have asserted his dissatisfaction under the express language of the condition and could have refused to approve the order and the settlement, by its terms, could never have proceeded.” This portion of the court’s opinion appears to me inconsistent with its later conclusion that the four objecting life members were irrelevant to the option given defendants to terminate the settlement agreement in the event their counsel determined the dismissal of this action was not with prejudice to all of the life members.