(concurring). I concur in the result reached in this case; but I cannot and do not agree with some of the language contained in the majority opinion. To me it seems clear that Mrs. Rudolph’s right to ask for contribution against Joe Mundy has been cut off by the verdicts of the Jury in the several consolidated cases; and, that being so, I think it is unnecessary for the opinion to contain any discussion about Mrs. Rudolph’s right to still ask contribution against Mundy in a separate suit if she so desires.
This latter point — “contribution in a separate suit if she so desires” — is a most dangerous doctrine. Our Statute on joinder and consolidation of actions contemplates that all possible causes of action growing out of the affair in controversy, and all possible defenses, should be asserted in one suit. In this case Mrs. Rudolph cross-complained against Mundy and brought him into this action. With him in the case on her cross-complaint, the burden was on her to assert her claim for contribution as well as all other claims arising from this collision. The majority opinion, in saying that Mrs. Rudolph may still “seek contribution in a separate suit if she so desires,” is entirely at variance with the spirit of our Statute (§ 27-1301, Ark. Stats.).
But, notwithstanding all of the above, I concur with the result reached in this case because it is my considered opinion that the verdict of the Jury forecloses any claim of contribution by Mrs. Rudolph against Mundy. The majority opinion takes the allegations in Mrs. Rudolph’s pleadings as evidence and from such builds a hypothetical case that Mundy was driving in a thickly populated residential district at 65 miles an hour. I find no evidence to support all this hypothetical theory, and evidently the Jury also took a different viewpoint of the matter, when the verdict said that Mrs. Rudolph was not entitled to any judgment against Mundy. When the Jury found that Mrs. Rudolph was not entitled to a judgment against Mundy, then certainly the Jury found that Mrs. Rudolph was not entitled to any contribution against Mundy.
Finally, let it be remembered that this case arose prior to our new Comparative Negligence Statute.