Ringele v. Terteling ( 1956 )

PORTER, Justice.

Appellant and respondents each filed a petition for rehearing in this cause. Such rehearing was granted and has now been held. The United States was permitted to appear as Amicus Curiae and to file a brief and present oral argument at the rehearing.

We have again examined and considered the questions of law and fact involved in this case. Likewise, we have again considered the propriety of remanding the cause for further pleading and proof on the measure and amount of damages. Appellant, in her petition for rehearing and in her oral presentation at such rehearing, rejected the measure of damages as determined by the Court and persisted in her theory as to the measure of damages. This position of appellant in effect vitiates the purpose for which the cause was ordered remanded and fairly brings appellant under the well recognized rule that generally, an appellant will be held to the theory on which the case is tried in the court below..

We adhere to and adopt the opinion originally filed herein as the opinion of the Court upon the rehearing, save and except that the cause will not be remanded for further pleading and proof. The judgment of the trial court is affirmed. Costs awarded to respondents.

TAYLOR, C. J., and KEETON and SMITH, JJ., concur. ANDERSON, J., sat at the rehearing, but died before final decision of the cause.