¶1dissenting.
¶2This case grew out of a one car accident which occurred about 4 a.m. on December 24, 1968. The plaintiff Helms and the defendant’s intestate, Miss Rea, were the only occupants of a 1965 Mercedes Benz automobile when the accident occurred.
¶3The vehicle involved belonged to Miss Rea. There appears to have been no other witness to the wreck. However, there was overwhelming evidence that the automobile was traveling at a great rate of speed at the time it left the road and that the driver was guilty of gross negligence.
¶4Mr. Helms instituted this action for damages alleging that Miss Rea was the driver and that he was a passenger and that her negligence caused the wreck and his serious injuries. Miss Rea’s administrator answered, denying that Miss Rea was the driver or was in any way negligent or responsible for the accident. The administrator set up a counterclaim alleging that Helms was the driver, that Miss Rea was the passenger, and that his negligence caused the accident and her death. The plaintiff filed a reply to the counterclaim denying its material allegations and repeated his demand for damages.
¶5After the issues were joined by the pleadings, the parties, as authorized by Rule 39(a), Civil Procedure, stipulated that the case be heard by the presiding judge. At the conclusion of the hearing the judge made among others the following findings :
“16. The defendant’s intestate was the operator of the Mercedes automobile at the time of the accident on December 24, 1968.
“17. That the plaintiff was a passenger in said Mercedes automobile at the time of the accident on December 24, 1968.
“18. That the defendant’s intestate was negligent in the operation of said Mercedes automobile in the following respects:
*622(a) That she operated the automobile at a speed that was greater than was reasonable and prudent under the circumstances then and there existing.
(b) That she failed to observe the highway and to keep a proper, reasonable and careful lookout.
(c) That she failed to keep the vehicle under proper control.
“19. That such negligence on the part of the defendant’s intestate was the proximate cause of the accident and the injuries and damage suffered by the plaintiff.”
The court entered this judgment:
“Based upon the above Findings of Fact and Conclusions of Law, the Court entered Judgment as follows:
“1. That the plaintiff have and recover of the defendant the sum of $55,249.55.
“2. That the defendant have and recover nothing by way of his counterclaim and that the same be dismissed.”
¶6The Court complains and orders a mistrial, not upon the basis of facts found, but upon the judge’s comments during the hearing in explanation of his dismissal of the counterclaim. It is my view that the findings of fact that Miss Rea was the driver and that Helms was the passenger and that the driver’s negligence caused the wreck and the passenger’s injuries required the dismissal of the counterclaim. The findings were con-’ elusive as to the identity and the negligence of the driver. After the findings that Miss Rea was the driver and was negligent and the negligence resulted in plaintiff’s injuries, no room was left for a finding on the same evidence that Helms was the driver and that his negligence caused the death of the defendant’s intestate. Therefore, the court’s comments as to his reasons for dismissing the counterclaim are immaterial.
¶7I vote to affirm the decision of the Court of Appeals.