(dissenting) — Although I joined in the opinion of the Department, and still concur in that opinion as to the joinder *708of parties, I am now convinced that the opinion is erroneous as to the instruction condemned. In my opinion, the instruction condemned follows the statutes of this state, is correct as a matter of law and justice, and should be approved. Ultimately it will be.

The verdict and judgment should therefore be affirmed.

On Rehearing.

Upon a rehearing En Banc, a majority of the court adhere to the Departmental opinion heretofore filed herein and reported in 128 Wash. 604, 223 Pac. 1050. The judgment of the superior court is therefore reversed and the case remanded for a new trial.