                                        No. 12166

           I N T E SUPRME C U T O THE STATE O MONTANA
                H          OR F              F

                                           1972



ARNOLD B, MORRIS,

                                  P l a i n t i f f and Appellant,

         -VS   -
LAWRENCE J. McCARTHY e t a l . ,
                                  Defendants and Respondents.



Appeal from:             District Court of t h e Fourth J u d i c i a l District,
                         Honorable Emmet Glore, Judge p r e s i d i n g ,

Counsel of Record:

         For Appellant:

                   William Dee Morris argued, Helena, Montana.

         For Respondent :

                   Alex C. Morrison argued, P l a i n s , Montana,



                                                    Submitted:       A p r i l 24, 1972

                                                       Decided :MAY 9    - 1%
Filed:    MAY 9      -      * %
                            I .
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       This appeal results from the dismissal of plaintiff's
complaint by the district court of the fourth judicial district,
county of Sanders.
       Plaintiff, Arnold B, Morris, filed a complaint seeking
damages against defendants alleging they disabled a D-7 Cat
owned by plaintiff by draining all of its fuel and thus pre-
venting the removal of the D-7 Cat from a mountainside before
the radiatar froze causing the engine to be ruined.
        lai in tiff's complaint was filed twelve days after a jury
verdict in a case wherein the same issues were raised.       See
McCarthy v. Morris,        Mont   .   9      P. 2d     9       St.
Rep,         .   In McCarthy a stipulation was entered by counsel
for defendant, Bud Morris,wherein it was agreed:
       "* * * that whatever the outcome of this trial
       we would consider the damages to the Cat to be
       Bud Morris' and Arnold would waive, and will,
       any damages of his own, other than what is our
       claimed loss of use and loss of the Cat. That is
       one thing he will do and be bound by the judgment
       in favor of or against Bud Morris in relation to
       the damages to the Cat,II
       In McCarthy the jury awarded no damages to Bud Morris on
his counterclaim for damages to the D-7 Cat, and thus this
action was instituted by Arnold Morris for alleged damages.
       The only issue presented here is whether the court erred
in dismissing plaintiff's complaint on the basis of the stipula-
tion in McCarthy, heretofore quoted,
       Plaintiff argues that under Rule 19, M.R.Civ.P.,    the trial
court should have allowed joinder of persons needed for the
just adjudication of the case and failure to do so jeopardized
the rights of plaintiff Arnold Morris.     Further, that in the
protection of Arnold     orris' rights, the court should have fol-
lowed Rule 15 (b) and ( ) M.R.Civ.P.,
                       c,                 and at the conclusion of
the case allowed the pleadings to be amended to conform to the
proof.
     We find no merit in these arguments. In the first instance,
in McCarthy all of the issues presented in the instant case were
set forth by the pleadings there, as they pertained to the plain-
tiff here.     In McCarthy the plaintiffs (defendants here) never
denied that Arnold Morris owned the D-7 Cat.      The issue of damages
to the D-7 Cat was fully examined by the jury in McCarthy and no
award of damages was given.
     In McCarthy the trial court in its Instruction No. 18
stated:
     "* * * But if you do award damages to the defendant
     the award, if any, must be ( ) for damage to the Cat,
                                 1
     which, if awarded, may not exceed the sum of seven
     thousand dollars, and ( ) must be for loss of use of
                            2
     the D-7 Cat, which, if awarded, may not exceed the sum
     of fifteen hundred dollars. The counsel agree these
     are the maximum limits which may be awarded, if you
     make such awards. You may award for damage to the Cat
     and for loss of use of the Cat, neithern either, or
     both, within the limits here set * *    *.
     Court's Instruction 18 fully advised the jury as to how
it could award damages.    The factual situation as to the owner-
ship of the D-7 Cat and what was done to it was covered during
the trial in McCarthy and the jury found no damages due to de-
fendant, Bud Morris.
     The order of the district court dismissing the complaint
is affirmed.
                                  I\




                                /'\     Associate Justice




,   Chief Justice




    ~ssociddeJustices.                 -3-
