400 So. 2d 380 | Ala. | 1981
Lead Opinion
Affirmed on the authority of Vaughn v. Thomas, 372 So.2d 1309, 1311 (Ala.1979), “A party cannot try his case on one theory and then appeal on a separate theory,” and Haskew v. Bradford, 370 So.2d 259, 262 (Ala.1979), “A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal.”
AFFIRMED.
All the Justices concur.
Dissenting Opinion
(dissenting):
I would grant rehearing. I agree with the majority that the theory of strict liability applicable to blasting damage adopted by this Court in Harper
I believe there is another issue, however, which was properly raised and which has not been addressed: the propriety of the trial court’s rejection of Plaintiff’s motion for a directed verdict on the trespass claim. To be sure, I understand the majority’s reliance on this point, the majority being of the view that a factual issue was presented under the Borland
. Harper v. Regency Development Company, Inc., 399 So.2d 248 (Ala.1981).
. Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979).
Rehearing
ON REHEARING
PER CURIAM.
APPLICATION FOR REHEARING OVERRULED.