Hammontree v. Southern Railway Co.

ON MOTION ROE REHEARING.

Jenkins, P. J.

The defendant files a motion for a rehearing, insisting that this court committed an error of practice in dismissing the plaintiff’s main bill of exceptions, which assigned error on the direction of a verdict in favor of the defendant on both' counts of the petition, after this court had reversed the judgment on the cross-bill of exceptions, which assigned error on the court’s failure to sustain the defendant’s demurrer to the first count of the petition alleging ordinary negligence as a ground of recovery. Movant contends that the court, after holding that the first count of the petition, alleging ordinary negligence as a ground of recovery, did not set forth' a cause of action, should have gone further and decided whether or not the plaintiff had proved her case as to wilful and wanton negligence as alleged in the second count. The argument of movant is strongly put; but nothing is better settled than that a ruling on demurrer becomes the law of the case unless and until it should be set aside by the appellate court; and since the plaintiff proved her case in accordance with the law as thus fixed and established by the trial court, she was entitled to recover, unless this ruling of the trial court should be set aside here. The case was tried, and the plaintiff made out her case as alleged, in conformity to what we deemed to be an erroneous ruling of the trial court on the first count of the petition. Until this ruling is set aside, the plaintiff is entitled to recover under her case as alleged and proved. By virtue of the ruling of the trial court, it was only necessary for plaintiff to prove either count of the petition. In our opinion, the jury would have been authorized, but not compelled, to find in her favor on the first count, but that the ordinary negligence which may have been proved as laid under the first count does not authorize a recovery. If there had been no cross-bill of exceptions, this court would therefore have been compelled to reverse the judgment on the main bill. There being a cross-bill, and this court reversing the judgment thereon by holding that the first count failed to set forth a cause of action, the trial as actually had under the law of the case as then enunciated and established by the trial court was necessarily nugatory, and the question whether or not the evidence authorized the plaintiff to go to the jury on either count (and that is the only question made by the main bill of exceptions) was necessarily moot. The fact that the plaintiff may have embodied the first count in her petition could not be taken to deprive her of the benefit of the ruling thereon in her favor by the trial court during the progress of the trial, even though such ruling is now held to be erroneous, for the reason that it was the law of the case that the first count did set forth' a cause of action until finally set aside by this court. The case was therefore tried on an erroneous theory. What the evidence might have been had the plaintiff been confined to the second count we are not privileged to surmise, but she is entitled to try her case under the law as now established. Rehearing denied.