Jackson State Bank v. King , 1993 Wyo. LEXIS 1 ( 1993 )

CARDINE, Justice,

dissenting.

Each case of this kind presents a new and different problem that adds confusion to what ought to be simple. See Schneider Nat’l, Inc. v. Holland Hitch Co., 843 P.2d 561 No. 91-44 (Wyo., Dec. 9, 1992) (Car-dine, J., dissenting). This case creates an injustice by requiring a party to pay 100 percent of a loss of which he caused only 35 percent. I would hold that when negligence is asserted and, as in this case, is an element of a claim, the case sounds in negligence, and negligence law and principles apply. Should the injured party sue only upon the contract, negligence principles would not apply. This would leave intact a pure contract action and result in a more reasonable approach to justice between the parties. See also Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 838 (Wyo.1991) (Cardine, J., dissenting).