(dissenting).
I dissent.
Under Rule 56 of Utah Rules of Civil Procedure, Subdivision (c) a summary judgment should be rendered forthwith only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine is*271sue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This rule should be kept in mind in passing on this kind of a motion. Otherwise, trial courts will be deciding cases on affidavits and depositions when there should be a regular trial. (Emphasis ours)
As I understand the prevailing opinion it concedes that the plaintiffs’ complaint states a claim upon which relief could be granted. It, however, seems to conclude that because of the pleadings and depositions, from other actions by plaintiffs against other defendants, in the absence of contradictory affidavits of plaintiff, that defendant has shown as a matter of law that they were entitled to a summary judgment. With this conclusion I do not agree.
I think that all the depositions and pleadings from the other cases show is that plaintiffs relied on and were induced to make these investments by fraudulent misrepresentation of the defendants in the other actions. However, that does not prove that plaintiffs did not rely on and were not induced by the fraudulent misrepresentations of defendant Yates in this action to make these investments. A party may be induced by and rely on the fraudulent misrepresentation of many different persons. I find nothing in the depositions or pleadings which shows as a matter of law or even indicates strongly that plaintiffs did not rely on and were not induced by the fraudulent misrepresentations of defendant to make these investments.
Nor does the fact that plaintiffs made compromise settlements with the defendants in the other action preclude plaintiffs from recovering against this defendant. Just as in a negligence action, the negligence of more than one person may proximately cause an injury so in an action for damages from fraudulent misrepresentation a person may be induced to make an investment by fraudulent misrepresentations of more than one person. A compromise settlement of the claim of a plaintiff in a fraudulent misrepresentation case does not preclude his recovery from defendants in other cases. Such a settlement by a plaintiff merely means that he has obtained at least part of the damage which he claimed from the persons with whom he makes the compromise. And, of course, as to such persons, it precludes him from further recovery. However, recovery from one defendant for fraudulent misrepresentation does not preclude the plaintiff in such action from recovering any unpaid portion of the damage which he suffered from another defendant in another action. However, the amount which he recovered in the other action would have to be taken into consideration and applied as a part payment of the damages which he sustained.1