dissenting.
A general rule seems to be developing in this Court that the more serious the injury, the poorer are the chances for being fully compensated, which is stated having in mind the Court’s opinion in Frank v. Bunker Hill Co., 117 Idaho 790, 792 P.2d 815 (1988) (addendum filed 1990), and now in the case of Long in his action against Mr. & Mrs. Hendricks, concerning which I now write. Today’s majority opinion is substituted for the Court’s previous opinion which has held sway since March 30, 1989, but a petition for rehearing was granted, and the case was reargued in February of this year. Today’s opinion withdraws the previous opinion, and is substituted in its place. A majority can do that. But the majority cannot withdraw my previous opinion, nor can it withdraw the opinion authored by Justice Huntley which also became my opinion when I joined it, as was my right to do.
The facts giving rise to Mr. Long’s injuries and resultant damages were ably set forth by Judge Swanstrom in Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct.App.1985), and were succinctly enough stated to bear repeating here:
On March 28, 1975, Long went on a service call for his employer Big O Tires in Bannock County. The call required him to change a tire on a pickup disabled on the interstate highway. The pickup was parked on the right side of the highway, partially on the pavement but completely outside the fog line. Long positioned the service truck to the right of the pickup in the borrow pit beside the highway. He engaged the ‘maxi brakes’ and set the outriggers to stabilize the service truck. Using the boom on the service truck, Long then raised the pickup and began to change the tire.
Suddenly, as he stood directly in front of the pickup, Long heard the blast from a car’s horn. Looking up, he saw a car careening off the highway towards the service truck. The car, however, swerved at the last moment and smashed into the rear of the pickup. The pickup, in turn, struck Long and hurled him over 100 feet through the air, rendering him unconscious. A short time later, he *1056came to. Although able to walk about on his own, he was dazed and could not do much more. Long went to the hospital for tests that day and the next day. Still later he was admitted to the hospital. He had no broken bones, but suffered from severe headaches and backaches, loss of hearing and numbness in one leg. Long was in the hospital ten days.
The following facts are shown by the undisputed testimony of Long, his former manager at Big 0 Tires, and other persons close to Long. For the next three and a half years following the accident, Long worked sporadically at Big 0 Tires. Due to the pain he suffered, he often missed work and, even when he did work, could not perform his usual tasks. Long was eventually laid off in connection with a reduction of work force. Less senior personnel, however, were retained because Long’s work had degenerated. In essence, his health prevented him from carrying out his assigned duties. Aside from a part-time job pumping gas, he was without work for twenty months. He continues to be in pain and is being treated by a chiropractor.
Long v. Hendricks (Long I), 109 Idaho at 75, 705 P.2d at 80.1 Judge Swanstrom’s published opinion concluded that the trial court had not satisfactorily explained its failure to award Long $21,000 in lost wages, and accordingly directed that the issue be reconsidered on remand. 109 Idaho at 79, 705 P.2d at 84. Similarly, Judge Swanstrom mentioned an apparent failure in regard to medical expenses shown by four exhibits, noting that “the trial court should include the expenses or show the basis for their rejection.” 109 Idaho at 79-80, 705 P.2d at 84-85.
The district court on remand did enter a supplemental judgment following a hearing on remand, which has already been discussed by Justice Huntley and myself in the opinions which we wrote. The supplemental judgment awarded the lost wages which the trial court had apparently overlooked, and did include with it the omitted medical expenses, respectively $21,100.00 and $899.79. Long v. Hendricks, 114 Idaho 157, 159, 754 P.2d 1194, 1196 (Ct.App.1988). As mentioned in what I wrote earlier, the district court did not allow any interest on the long-delayed award for loss of wages, saying that could be attended to by the Court of Appeals which had declared in the first place that there should be a judgment for loss of wages. That was a strange stance taken by the district judge, but because of the circumstances it was understandable.
The Court of Appeals in the ensuing opinion authored by Chief Judge Walters made two significant holdings which precipitated Long’s petitioning this Court for review. In his opinion, Judge Walters concluded: (1) that Long was not entitled to interest on his initial judgment, and (2) that he was not entitled to interest which ordinarily would have accrued on the loss of wages, had judgment been entered when it should have been. The initial judgment should have been for $21,027.85 (initial damage award) plus $21,100.00 (wages), and $899.79 (omitted medical) and accruing interest on both items at the statutory rate. I am hard pressed to find even the slightest justification for depriving Leonard Long of the interest which ordinarily would be accruing on an amount totaling just over $43,000. It should have been awarded. It adds up to a substantial amount of money, and Leonard Long, as with any prevailing tort plaintiff, was entitled to it.
Radioear caught my attention when it was first issued two months before my debut in Boise.2 I continue to have problems with both opinions in Radioear. Not*1057ing that rehearing was denied, I resorted to the original file in the clerk’s office to see what light might be found there. What I discovered was that both parties had petitioned for a rehearing. And still the Court denied reconsideration, apparently bogged down in a dispute as to the better of two differing rationales, and not willing to attempt reaching another resolution. Whatever the right of it, to the credit of the McFadden-Bakes-McQuade opinion, and likewise to the credit of the Shepard-Donaldson opinion, neither saw enough merit in Bechtel v. Evans, 10 Idaho 147, 77 P. 212 (1904), to even mention it. Nor was it mentioned in Bob Rice Ford.
I have little regard for the rationale of a 1904 opinion which was based upon principles not evolved by Idaho’s Supreme Court, but rather found in a New York case from a court (if it truly fits the definition) the likes of which we have never had in Idaho. Moreover, I am wholly unable to fathom the reason for adopting the rule of Bechtel, other than that it came from the eastern seaboard, and Idaho had little case law of its own upon which to draw.
Although Justice Johnson has now utilized Bechtel as the backbone of his two opinions in this case, I am not persuaded, and will not be. If I correctly read the Court’s now withdrawn 1989 Opinion No. 40, now found only in 89 I.S.C.R. 357, the Court per Justice Johnson stated as one of its conclusions that: “If Long had presented the clerk with a satisfaction of judgment, presumptively the clerk would have released, the tendered amount to Long,” in which case Long would not “have been foreclosed from pursuing an appeal of the judgment.” 89 I.S.C.R. at 359. The opinion arrived at that conclusion by the dazzling footwork of a string of choices:
(1) The Hendrickses chose to condition their tender by requiring Long to satisfy the judgment. (2) It was also the choice of the clerk to accept such a tender that was not in the form contemplated by statute. (3) It was Long’s choice not to accept the amount tendered, and he is not entitled to post-judgment interest on the amount of the original judgment.
Two of those three choices were not of Long’s choosing, but rather were the doing of the Hendrickses as to (1), and the court clerk as to (2). Long’s only choice, to not draw on the money, was not a choice but a chance, which his counsel decided against, knowing that if he did gather in the money he might be running afoul of what many practitioners believed was the better opinion in Radioear, namely Justice Shepard’s dissent, joined by Justice Donaldson. There the test of voluntariness was set out: “The rationale for the rule appears to be that payment made under the threat of imminent levy and sale is under duress and therefore regarded as coerced.” Radioear Corp. v. Crouse, 97 Idaho 501, 506, 547 P.2d 546, 551 (1976) (Shepard, J. dissenting). The Hendricks’ choice was not coerced, but they were not appealing. It was Long who was appealing, but he was neither threatening execution and levy against the Hendrickses, nor was he, in a wise decision, about to gather the fruits of his judgment. To do so was to risk his right to pursue $21,000 in loss of wages to which he was clearly entitled. Only a litigant with a fool for a lawyer would have taken that risk — especially under the unsettled state of Idaho law as witnessed by Radioear’s two diversely opposite opinions.
Clearly the 1989 opinion was based on Justice Johnson’s reasoning that Long forfeited his right to interest on the judgment award, which he predicated solely on Bechtel. Now, as I read today’s substitute opinion, Long continues to lose, but this time on the theory that “Long sought a new trial and rejected the tendered amount ... by doing so he gave up his right to interest on the amount of the original judgment from the date of the tender.” 117 Idaho 1053, 793 P.2d at 1225.
*1058I do not see from the record that Long rejected anything. He simply did not take the risk of causing a dismissal of his appeal, which was aimed at gaining an additional $21,000. Quoting from the majority quoting Bechtel, “as a general proposition of law, a successful party should not be allowed to gather in and enjoy the fruits of his judgment and thereafter prosecute an appeal and complain of error committed against him____10 Idaho at 149-50.” 117 Idaho 1053, 793 P.2d at 1225. That language is in substance the language found in Justice Shepard’s Radioear opinion.
Justice Johnson writes this second time around that allowing Long to seek an increase in his judgment by an appeal by which he hoped to eventually gain the omitted $21,000 in loss of wages, and as well the interest accruing on that amount, is inconsistent with allowing him to collect interest on the amount tendered to pay off the initial judgment which had been entered. Frankly, it does not add up. And it does not, contrary to Justice Johnson’s assertion, make it impossible for a judgment debtor to avoid payment of interest while the judgment creditor pursues a $21,000 sum of money — inadvertently not awarded to him notwithstanding that the proof was in place. At oral argument it was made very clear that counsel for the Hendrickses was putting Long in a box by making a conditional tender, where, if his real and only purpose was to free the Hendricks’ property of the judgment lien against it, and if the purpose also included avoiding the accrual of interest on the initial judgment, all could have been accomplished had Hendricks’ counsel stated in his written tender to the clerk his agreement on behalf of his clients that Long’s acceptance of the money from the clerk would not affect or operate to invalidate or moot the appeal. Instead the ploy of making a tender not in accord with the statute was utilized. By the grace of the Idaho Supreme Court the ploy pans out, and counsel for the Hendrickses has turned a neat trick for his clients. Alas, however, at the expense of the badly injured Leonard Long, who is being judicially deprived of all the interest which accrues to all other judgment creditors.
Nothing supports the bald statement that the rationale for Justice Johnson’s conclusion is that Long on pursuing his appeal might have eventually received a judgment for less than what he had received (had he accepted the tender). Absent any cross-appeal being taken by the Hendrickses, and there was none, the basis of that conclusion is presently vaporous.
. The Court of Appeals also had issued and. withdrawn an earlier opinion, which I mentioned in my opinion of March 30, 1989, wherein I repeated some of the content of the first Court of Appeals opinion, dated February 8, 1985.
. In my first year of judicial service I also participated in Bob Rice Ford v. Donnelly, 98 *1057Idaho 313, 563 P.2d 37 (1977). As pointed out in Justice Shepard’s opinion, that appeal came to a sudden halt when at oral argument we were informed that the entire amount owed had been paid. The appeal was dismissed, and no new law was made.