Safeway Stores, Inc. v. Fuller ( 1943 )

This is the second appeal of this cause before this court. See Safeway Stores, Inc., v. Fuller, 189 Okla. 556,118 P.2d 649. Therein we reversed the judgment of the trial court in favor of plaintiff for the reason that plaintiff failed to prove primary negligence on the part of defendant. Upon retrial on the same pleadings plaintiff again prevailed, and defendant has appealed. We have made a close examination of the record and find the testimony substantially the same as in the former appeal.

It is the well-settled law of this state that where the facts, on a second appeal, are substantially the same as on the first appeal, the decision on the first appeal is the "law of case" in all its subsequent stages and will not ordinarily be reviewed on the second appeal. Harp v. First Nat. Bank of Anadarko, 169 Okla. 548, 37 P.2d 930, and authorities therein cited.

The judgment of the lower court is reversed and the cause remanded, with directions to render judgment for the defendant.

CORN, C.J., GIBSON, V.C.J., and BAYLESS, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur. RILEY, J., absent.