*1 268 .'246 Railway
St. Louis al Southwestern et Co., Adm'r, et al Jackson, Ward 5-4664 41 2d
Opinion Delivered March Audrey Barrett, Strait & Wheatley, Smith Beacon for appellants.
Gordon, Gordon & Eddy for appellees.
Conley Byrd, Justice.
our reversal and
Following’
remand in St. Louis
Railway
Southwestern
Co.
Jack
son,
I. There was no absolutely proof negligence a verdict should have been directed for all defendants.
II. The mental award for death anguish grandchildren erroneous.
Appellees’ again witnesses the mot- testified about freight orists’ obstructed view of southbound trains and *2 signal lights. the Otha He- dimness of the Witnesses Larry again witt and Coulson testified that motorists traveling not clear west did have a and unobstructed they got a 150 feet view of train within southbound until the track. witnesses that railroad Other testified Appellees’ this distance be as feet. could much as again signal lights were witnesses testified that they were dint and difficult to see. witness said One interlocking signal much than the dimmer railroad’s Belt where Missouri Pacific tracks cross the Cotton that the tracks. A new signal lights testified Albert witness, Hess, bright light flashing not near were as as the policeman investigate the car the sec- of the called to ond accident. testimony previous with reference to the two period
accidents within same two-week under sim- again presented, together ilar circumstances with the traffic count and the overall view of In the area. previous appeal testimony we held this sufficient to jury speed abnormally amake issue excessive dangerous crossing. findWe that decision to be con- trolling the law of here as the case. appeal appellants
On the first contended that grandparents damages were entitled to recover for anguish grand- mental occasioned the death of the Tommy children because Jackson lived few some mom- after of his ents of action for mental the death children and thus cause anguish Tommy with died Jackson. pointed there out there We was evidence from jury parties which the taneously. could find all died simul- holding properly the matter was jury we submitted to said,
“It is true that when we had our mental anguish Peugh, supra, statute before inus we there recovery anguish limited for mental to ‘heirs at law’ of the decedent. However, where a whole
family is the moments, is killed a matter of expect bar here, situation bench and should not ‘ interpretation at heirs too literal words Peugh. 255 of law’ as the same are used Act creating right to recover for mental certainly anguish, right intend that to be did not so limited.” plead-
Upon came the same retrial matter presented ings under evi- the court identical and was appellants grand- time contended that dence but per- parents within the enumerated relatives are anguish cause action mental mitted to assert the law 1957. Under the doctrine of 255 of under Act *3 properly trial court ruled hold that the case, of we appellants against on this issue. analagous Moore, us an had before situation
We 2d 796 Robertson, Admx. v. 427 S.W. (1968) we said: wherein appeal cross Robertson first contends
“On that the trial court’s decision of his code- favor on the should inure to his benefit merits, fendants, upon That contention is based a common- well. an- law that where defendant answers and rule one in favor of defaults, other decision on merits answering upon a defense common defendant — operates as a release of both defendants — defaulting Ark. defendant. Burt Henderson, (1922). 238 S.W. appellee’s now avail-
“The
contention
not
been
able to
because it
and should have
him,
could
appeal.
the first
The rule
made on
is that
de-
any arg-
appeal
the first
cision on
is conclusive of
or
at that
uments that were
could have been made
supra.
Fullerton,
time.
The case at
Storthz
ap-
If the
bar
the wisdom of
rule.
confirms
pellee’s
point
we do
contention has merit —a
which
appeal
on tlie first
would
not decide—its assertion
away
necessity
with
a second
have done
appeal,
trial
with
and a second
their attendant ex-
money.
penditure
waste can be
of time and
Such
prevented only by
effectively
a strict
adherence
points
urged upon
principle
not
the first
are
later on.”
available
agree
We would
than
if
less
honest we did not
appellant
with
the law of the ease doctrine is a
weighed
justice
harsh rule, but when
on the scale of
we
uncertainty
tlie
find that
confusion and
which
re-
outweighs
sult without use of the doctrine
the harsh-
Hanley,
(1849)
ness.
Porter v.
In
“The counsel for the
has
at
length,
question
some
tlie main
decided
this
appeal,
Court
the first
asks
we review
purpose
correcting
that decision for the
what he
duly
assumes as error in the decision. We have
proposition (for
considered this
is not
assignment
errors)
raised
and inasmuch
as the
decisions
Court have
been alto
*4
gether
point,
proceed
uniform on this
we will
to
review them and determine whether, in the after
adjudications
upon
of this Court
the same
its
case,
any
decisions
under
can,
circumstances, be modified
or overruled. The cases of The Real Estate Bank
Fortenbury
v. Rawdon et
5 al., Ark. 558.
v. Fraz
ier
al.,
et
even it is when has mis this Court Fortenbury a material fact. taken In the case says Frazier, et al., the court ‘After case a has Supreme the and been decided Court remanded again brought the and is before inferior Court Supreme nothing Court, the adjudication is the for before Court subsequent proceedings
but the
In the
Bank v.
mandate.5
ease of
Real Estate
upon
question
al.,
et
Rawdon
as to
power
its
had
to reconsider
de
whether
Court
they
at the close of the term at which
were
cisions
majority
although the
were
made,
divided,
Court
being
though the
that even
motion
it
must
also at
made at
same
be decided
term,
conclusive,
that term or the
they
will be
still
unanimously
opinion,
were
that where
interposed,
for a reconsideration is
no motion
final
term,
at
became
the close
its
decisions
upon
parties.
conclusive
(Rutherford,
use, &c.
“In a more recent case,
Lafferty,
402,)
Eng.
this court
de
seems
parted
cases,
in
whilst
rule laid down
these
from the
contrary,
authority
questioned.
is not
On the
their
recognized
general
it
seem
the court
principle,
the fact that
but based its decision
Supreme
former
had
decision,
in its
Court,
important
This
an
fact
the case.
overlooked
recurs,
but then
true;
was doubtless
be held as conclusive between
can the decision
subject
yet
parties
to correction and revision
misapprehension
these,
If for
of facts?
to a
why
at
law also? We are
as to the
errors
satisfactory
for the distinc
reason
a loss for
unwilling
to concede that
should
and are
tion,
only authorize the
made
exist.
It would
where
but in all cases
this instance,
of their
zeal for the success
in their
counsel,
*5
might
where there was
and doubtless would,
clients,
hope
the
be
whole case
re-
ask
success,
of
uncertainty
which
and confusion
viewed.
practice,
strike
from such a
result
would
vitally
progressive principle
at
which lies
the
proceedings
happily
judicial
so
of all
foundation
pleading
system of
and
the
and
in
order
illustrated
step
pro
practice,
the
in
which make each definite
parties,
gress
and
the cause conclusive
of
point
prospectively
and final
to an ultimate
them
pleading
rules of
These
decision of
case.
ap
origin
principle alike
in the same common
their
litiga
plicable
judgments
where
of courts,
judgment
of each court
final
tion
and
ceases,
set
courts unless
aside
in the inferior
and conclusive
super
appellate
tribunal;
or
an
reversed
unconditionally
propriety
If the
ior
so.
court,
abundantly to
it is
illustration,
need
this rule could
use,
v.
&c.
Rutherford,
case
found in the
Laf
ferty.
Supreme
that the
decided
There
Court
plaintiff
right
whatever in the mat
no
of action
had
controversy,
of the
ter
reversed the decision
and
the case returned
Cir
Circuit Court. When
decision of this court
Court, in
cuit
obedience
right
plaintiff
action,
had no
decided that the
against
for costs. The
him
and rendered
again,
plaintiff appealed
and this
to this court
Court
reversed the decision
Circuit
had
of this
which
been rendered on
mandate
court, for the reason that this court had mistaken
important
an
in fact,
case.
fact
So that,
totally
point
there are two decisions dif
Fortenbury
ferent.
think the cases of
We
Band,
al.,
al.,
Frazier et
the R.
et
and
E.
Rawdon
upon authority
principle,
well
both
sustained,
give
approbation.”
them our full
Floyd
Company,
v. Miller Lumber
274 by Floyd,
demurrer and when he elected to stand there company holding for the lumber on, rendered upheld the act unconstitutional. On we validity Upon of the act and reversed. remand, Company complaint Lumber amended its to raise the applicable issue that act was the tax to it. theOn subsequent appeal, Company Floyd, Miller Lumber v. (1925), 169 Ark. held we that the issue applicability Company of of tax act the Lumber by had been the law foreclosed of the case doctrine. doing, so we said:
Having reached the conclusion that the tax levied the statute was a tax on business and property, four members of this court for different reasons united in a decision that the tax occupation property was an tax not a tax, and provision and therefore was not in violation of the of the Constitution above quoted. Whether this right wrong, decision or it is the law of the judicata. long case; res it is The rule has been uniformly established in this State and adhered that in the same cause this court will not reverse decisions., Fortenberry nor revise its former v. 5 Ark. Porter Frazier, 200; 186; v. Doe, 10 Ark. Vogel Barnett, 47 Ark. 359; v. Little Taliaferro Annuity 55 Ark. Bock, 609; United States & Life Ins. Co. v. 129 Ark. Peak, 43; Danaher v. Tel. S. W. & Tel. 137 Ark. Co., 324; Ft Smith Lbr. Co. v. State Arkansas, 138 Ark. 581; v. Barron, Stuart Ridge-Alicia Ark. 380; Mo. Pac. Rd. Co. v. Walnut Imp. Dist., Road L. 297; St. S. F. R. Co. Kirkpatrick, 162 Ark. 65, and numerous other Appeal cases under the cited head of and Error Digest, in 1 Crawford’s 405 and 5 Crawford’s Digest, general grounded § 405. This rule is public policy, experience, ques reason. and If all tions been that have determined this court are regarded open to be as still for discussion re cause, vision same there would be no end ability litigation until the financial tlieir ingenuity parties had of their counsel been long established A rule that has been so exhausted. important is so and acted and that practical justice in the administration of courts departed should be followed and not from.” *7 antiquated, This neither doctrine is new or but has constantly through many appli-, lived with this court its unwilling cations. At we are to time, overrule the many precedents applied. wherein it has been For this reason the is affirmed.
George Fogle- J., concurs; Brown & Rose Smith, man, JJ., dissent.
George Rose concurning. Justice, I Smith, join majority opinion, appropriate but I think it separate a add few words of concurrence to call at- assumption dissenting opinion tention to an made in the misconception which I think practice to involve a of the remanding that we follow in a case for a new trial. keystone minority opinion in this case appellant the assertion escape the should rule of the law of the case because counsel could not successfully urged present their contention on the appeal. pivotal first language This is in the dis- senting opinion: agree
I would that when the record was such partjr against that the [of whom the rule the law argued point case] could have is invoked appeal, from first he should be foreclosed arguing appeal. a But that is not it on second Appellants argued not have case here. could point appeal. have re- on their first We would they jected argument their had done because the so, the first time would have been raised for appeal. affirming customarily a When we are ease we re- ject arguments pro- that are vulnerable technical proper cedural such as a defects, failure to make the objection in the trial a failure to court, include in objection case, motion for a new trial an in a criminal judge give requested failure trial instruc- imperfectly drawn, tion that was exception a failure to save an pro- case, in a criminal a ordinarily host of other given cedural defects that must effect orderly litigation. conduct of *8 already we When, however, found reversible remanding error and are the case for new the trial, — wholly quite situation is as much different so as — day. night practice rightly from It is then our — any may so to consider on its merits contention that again regardless pro- arise when the case is retried, compel cedural defects that would otherwise re- us to ject only requirement the contention. The is that the point brought (which the to our attention in briefs appeal was not done the first in v. State, Mode relied upon by minority opinion bar). the in the case at practice respect
Our is that so well settled examples any Reports could be found in volume of our published during past quarter century the so. I will or only High cite way our unanimous in Arkansas State
Commn. Ark. Co., Real Estate (1967), S.W. 2d because we there considered on pro the merit not one but two contentions that were cedurally upon defective. we One, held a new appellant in- to a certain be entitled would trial the though at the first trial offered one struction, even imperfectly rejected properly it ivas drawn. because appellant’s pointed con- that one of we out Two, upon might a second even trial, be unsound tentions appellant’s though abstract not tell from we could appeal trial court whether the had erred on the first original at trial. demonstrably practice right. It involves is Our ¡either losing court or to unfairness trial
no party, going for a new trial because the case is back fry prevent is to event. Hence what we to do still some that is a third trial as a result of error called upon appeal. to our attention the first The view of the opinion, dissenting encourage hand, on the other unnecessary by requiring reject, such us third trials procedural grounds, ought contentions that to be dis- posed appeal. of on their merits the first present my point.
Indeed, case illustrates minority opinion concluding error, is in I in its think, observation: “In this ease it should be less difficult ¡error recognize urged by appellants we because bugaboo would not be faced with the third of a trial. simply judgment by We could reduce the the amount of anguish.” the award for mental bugaboo
Here the
is not a third
trial;
point
that of a
trial,
second
as far as the
now at issue
is concerned. On the first
the railroad com-
pany argued,
though
wrong
reason,
*9
grandparents were not entitled to recover for mental
anguish.
company
The
pre-
could and
should
present argument
sented its
way
at that
In
time.
even a
grandparents’
second trial
the extent of the
anguish (which
mental
Peugh
is a
of fact under
Oliger,
[1961])
Ark. 281,
wasteful and I all John A. concur in Justice. Fogleman, application except court’s of the “law of the case” portion anguish relating to that to the mental award any grandparents. I think that the do not doctrine has application part judgment of to this the court salutary necessary one, below. While the rule is recognized beyond its harshness not be should extended necessary, particularly those situations in which it is to reach a patently result, erroneous as is the case here. I have been unable to find has made the doctrine ease where this applicable situation sort. necessary
In order to illustrate, to review previous proceeding. record of the this and the At the time judge gave per first the circuit trial, instructions mitting recovery by grandparents anguish. for mental given objection by appellants The reason for the proof instructions was that the were showed that the children their survived father and that the claim for anguish extinguishing mental died with him, itself, pass grandparents. did point not then on to the The by appellants relied on on the first is stated in opinion. Railway See St. Louis Southwestern Co. Et Al v. Ward Adm’r Et Jackson, Al, Ark. point argued 416 S.W. 2d was on the right anguish basis that to recover for mental was undisputed vested in the father and that evidence showed he survived the two children from one to fifteen minutes. disagreed appellants point
We with the on this but solely ground testimony on the there from jury occupants which the could find that all of the auto- instantly. covering point, mobile were killed we said:
“It is true that when we had our mental anguish Peugh, supra, statute before us in we there recovery anguish limited for mental ‘heirs at law’ *10 family a whole of where However, the decedent. as is the situa- moments, in matter of is killed expect and bar should not here, tion the bench interpretation of the too literal words ‘heirs at Peugh. law’ as the same are used Act of creating right to recover mental anguish, certainly right did not intend that to be so limited.” point was not
This treated further. Its de- necessary termination was to a decision of the case. admitting reversed Wo for error the trial court in expert testimony abnormally dangerous as to the con- crossing dition of the railroad and for admission of special given by appellants certain instructions to their employees. Our directed a new trial.
I do not think doctrine the law the applied present case should be because the issue is not previous appeal one which was decided on the and the previous appeal necessary decision made on was not disposition of the case. When the instructions ’ concerning grandparents right to recover for mental anguish presented appellants were on the new trial, did attempt again to raise the which was de- simply objected cided court. It on the basis grandparents right had no to recover mental anguish grandchildren for the death of under our statute they any permissible because are not within class of relationship. application majority of the rule made every litigant every
would mean that will have make possible objection any step in the trial which he con- may siders even when the erroneous, trial rule favorably objection on the first he makes. This objected testimony mean that one who had on the object basis that it was irrelevant could not to it on hearsay granted the basis that a new trial upon reversal of the trial court because of its erroneous ruling point on that in the first trial. I cannot find *11 application the rule extreme an case where snch majority no snch case cited has made. The been
has distinguish- opinion. are it did cite The cases its in able. 837, 427 Robertson, v. Moore, Adm’x
In clearly the contention that said since 796, we 2d S.W. on the made have been should could and agree when appeal, I that barred. would was first party against whom the that record was such point argued on the have invoked could is rule arguing it appeal, from he should foi-eclosed first appeal. case is here. But a second argued point Appellants on their have could not rejected argu- appeal. their would have We first they question would because the so, ment had done appeal. time raised for the first been 48 Fullerton, 185 Ark. S.W. 2d 634, In Storthz equity chancery an this court remanded case 560, a and for further with to enter decree court directions proceedings a the benefit of to enforce vendor’s lien for Storthz, Ark. 33 Fullerton. See Fullerton pleading remand, 2d a new On Storthz filed sought he in which to reach the lien Fullerton’s note by equitable garnishment. hands The referred to court actually judicata. applied the “law of the but res case,” It clear, however, contentions made there appeal. could have been made on the former this grant case the direction was a new not to enter trial, judgment. endeavoring Storthz was to have judgment determine whether the directed this court Appellants be entered and carried into effect. are seeking appellants to do this. Furthermore, could argued objection urged not have now on the former appeal. Floyd,
In Miller Lumber v.Co. Ark. appellees S.W. 741, the had filed a demurrer, which chancery was overruled and final was decree entered against them. was reversed and the proceedings with not inconsistent cause remanded only question the constitu- involved opinion. The ap- tionality remand, Tax Act. On of the Severance complaint raising- pellees case amended in the first application of the act. to the construction issues as the amended demurrer sustained a The trial court complaint again From final decree. entered Appellants appeal taken. the second decree, again argued unconstitutional. On the act was holding appeal, was based the first the decision property occupation tax not a tax. that the tax was an Lumber the second the contentions Miller On Company necessary were such that it have been *12 say property for the court to that tax was on rather occupation. properly applied than on the "We “law of the case” doctrine because to do otherwise would required holding a reversal of the that the tax property was not a tax.
Although applied the doctrine has been in Arkansas given with reference to instructions on the first trial, application none of the cases indicate that it has where objection on made the second trial was same as that made on the first trial.
In Friedman v. Cornish, 99 Ark. 139 648, S.W. 543, we recited that all the instructions on the former trial repeated were except on the second trial for an er- roneous in lieu instruction, of which an instruction in opinion accordance with the prior appeal court on given. points was are The raised on appeal the second only
not stated. The court said that the instruc- approved appeal tions on the disapproved former or not were the law of the case and the given, instructions, fairly jury. submitted the cause to the Ry.
In St. I. M. Louis, & F. Co. v. Gibson, 113 Ark. only 168 417, 1129, S.W. we said that it was sufficient unspecified assignments answer to giv of error to the ing say of instructions to given the instructions on conformity the second trial were in with the rules of opinion law laid down in the appeal. on the first 197, 122 Ark. In v. S.W. Cleveland, 259, Scott opinion appeal a former did held that the on the case as certain instructions. settle the law of to only that the error com- The former had stated refusing grant to con- the trial court was mitted refused, The were tinuance. instructions appear but it that these were does not two instructions they trial, asked and refused on the former were opinion. not discussed in the The first reversed court give failure the instructions. Moss, 545, 131 Ark. we McCombs S.W. 509, conforming held that instructions on the second trial appeal the rules of this from the appeal. are first trial correct deemed on second case was reversed on the first for failure to give an instruction. Moss, See McCombs v.
533, 181 S.W. In Missouri Railroad Co. Foreman, 196 Pacific 636, Ark. 119 S. W. 2d the court stated in given subject structions on the first trial were not appeal, they approved review on the second since were holding there was no error in the record ¡except argument of trial first of one of the attorneys. opinion (194 The first Ark. *13 546) specifically 2d questions stated that the usual arising present in such cases were and discussed in the briefs but that except partic no error was found ulars stated therein. In Thacker v. Hicks, 215 Ark. 898, 224 2d S.W. principal objection
1, the to the instructions was that competent support there was giving no evidence to holding appeal, that the thereof. We said on the first refusing giving there no was error in the or of binding was instructions, as the law of case insofar as these instructions were concerned. only question appeal decided on the first in
this case was that there was
fact
to as whether
them. The instruc
survived
of the minors
the father
anything
given
said
nor was
mentioned,
was
tion
right
grandparents
recover for mental
about the
necessary
anguish.
It
to the decision of
binding
opinion
become
to do so. The former
has
case
questions
as the law of the case to the extent
there
201 Ark.
involved were
Baker v. State,
decided.
Ry.
652,
“Whatever was before the court and
finally settled,
of is considered as
but the inferior
being
justified
court,
case
in
remanded, is
considering
deciding any question
open
left
opinion,
may
the mandate and
consult the
exactly
to ascertain
what was decided and
* * * ”
settled.
opinions
While our
have stated that the law of the
applied
questions
case
might
to all
which
raised,
were
or
appeal,
been raised on the first
I find none that
principle
extend the
might
to those which
have been
raised
the trial court but not in this court. Ob
viously, any question
raised on
that was not
raised in the trial court
would not be entertained
court.
questions
We have refused to consider such
many cases where a new trial was or should have been
anticipated. Holland
Ratliff,
238, Ark. 819, 384
950;
S.W. 2d
Weisharr,
Ransom v.
236 Ark. 898, 370
S.W. 2d 598; Industrial Farm Home Gas
Co. Mc
Donald,
284 say objection
In order that ail raised court on the the trial cannot raised trial first be on disregard we trial, the second must of the effect of a trial remand case for a new on reversal. When wiped this, we do the slate is as if there clean, had never been trial. The case stands in the attitude just prior going it was v. Ewan, into trial. Heard 73 Ark. 85 240. 513, S.W. In Fire Ins. Co. Hartford Enoch, v. 96 475, 393, we said: S.W. * *
“ # "When, on or writ error, cause is reversed and remanded for new trial, by case as if no stands action had been taken lower court. Harrison Trader, Ark. 85; 29 Heard Ewan, 73 513, Ark. If the S.W. developed facts trial second remain same they as were on trial, the first the lower court must governed, applying be the law to the facts, principle announced this court in that case * * * ” controlling. [Emphasis mine.] as principle No better statement of the involved could made than Carden, was contained in Palmer v. Ark. 2d where we said: * * *
“ judg- This court reversed trial ment ease, and cause, remanded the we occasions, have said, numerous that, when a judgment is reversed and remanded for new trial, the case if stands as no at action all had been taken by the trial court. This was first stated far back as 1874 in the case of Harrison v. Trader and quoted Wife, Ark. 85. case, we lan- guage from the case v. Price, Simmons 18 Ala- bama 405, as follows: judgment rights
‘When is reversed, parties immediately are restored they same condition in which were before its rendition; be mere said to paper.’ waste
285 re- we have had occasion to time, Since that many times. See Hartford this statement iterate 393; 475, Enoch, 79 Ark. 96 S.W. Ins. v. Fire Co. Gregory 610, 222 Ark. 260 et S.W. 2d Holt v. al., * * * 459. 133, 242 Ark. v. Ark. Democrat Co. See also Clark Supplemental Opinion, 497, 242 Ark. 413 2d 629, S.W. Morgan Engineering v. R. 633; 413 2d S.W. Co. Cache Dist., 122 Ark. Drain. 184 491, S.W. specifically only opinion tire
Not
did
remand
our
trial,
case for a new7
but
“further
the mandate directed
proceeding's
opinion
not inconsistent with
herein.”
n would
majority
probably
The result reached
be
proper if the case had not been remanded for new trial.
ap
majority opinion
The rule followed in the
plicable
given
as to
if
issues
in
mandate had
judgment
structions to render a
in accordance with the
appeal.
Hollingsworth
on first
See
v. Mc
Andrew,
Draper,
79 Ark.
485;
95
185,
S.W.
Hill v.
63
Improve
141,
Ark.
37
574;
S.W.
Prewitt v. Waterworks
ment Dist. No. 1, 176 Ark.
5
1166,
2d 735. The
same result has been reached as to
new7issues where
judg
directions
circuit court were to affirm the
county
Milsap Holland,
ment of a
board of education.
996,
184 Ark.
“Where a case has been Court and appeal reversed, been the law announced on the former Propositions the law the case. of law appellate open court are an
once decided subsequent in that to reconsideration appeal. ap Whatever was decided on the first peal remains law of the case for all further proceedings. Morris & Co. v. Co., Alexander & City (2d) 558; Ark. Fentres v. National 735, S.W. *16 Bank, 172 Ark. 290 58. 711, However, S.W. appeal is the law of on former the case as decision Henry adjudicated. to so of the case as was much Irby, (2d) Chicago 49; Ark. 1 614, S.W. Co., v. Osceolo Land 94 Ark. Mill & Lumber Co. 183, S.W. adjudicated only question in this case
Tbe on appellant appeal right was the to main- former This was settled tain suit. appeal former and cannot be reconsidered. The pleadings raised tbe was other issue not ad- judicated appeal on former not res ad- ’’ judieata. previously permitted We have new issues to be raised on retrial after reversal mid remand. For Surety Y. instance, in American Co. N. v. Kinnear Manufacturing Co., 2d apply court refused to the “law tbe case” from a previous appeal. Upon complaint remand was allege guilty amended to that- an architect was of such imply inattention and as faith. indifference bad This jury issue was then submitted under instructions correctly subject. declaring the law on that On the previous appeal, the court had held an instruction touch ing upon this issue to Tbe be correct. reversal was foi give failure to instruction. Thus, one of the parties permitted, upon retrial, was raise new issue. being In this is what is here. effect, done Morgan Engineering In Dist, Co. Cache R. Drain. supra, apply the court refused to the d >etrine. The appellant contended that the on trial circuit court after inquiring validity remand, from foreclosed into the language It a contract. asserted that the of opinion of the appeal adjudication on the former was an of the binding effect of the contract and that the trial court parties and the were bound under the law of the case. appeal on the reversal former AYasbased proof of the failure trial court to take of the value of services rendered under the contract and to find for appellant for that amount. On an retrial, issue was validity appellee made cidentally, to the district in- and, validity referring of the contract. by appellant, to authorities cited we said that those simply decisions announced and adhered to the rule that where an issue has been raised the court below and finally adjudicated has been Supreme reopened Court the same issue cannot be on another trial. We proceedings said that a remand for further in accordance with the was in effect a remand general, contemplated for a new trial in which that there might *17 was to be a new pre- trial on the issues that be language sented. particularly sig- used there is nificant here: appellees (Inter-
“Now, on the first trial the veners) challenge validity did not the of drain- age they district, and no to introduced evidence show that the district was invalid. Their con- abolishing tention Avasthat under the act the dis- appellant trict should be alloAved to recover only compensation jury might such as the find They directly reasonable. did call in issue appellant’s only but contract, claim that it was not entitled to recover under it. On the last trial the entirely changed. By permission issues were of appellees permitted put the court the were to forth entirely appellant’s an new defense to claim, and up being to set certainty, that, the district void un- authority
the directors had no to enter appellant, into a contract Avith and that therefore appellant such contract was void, and that Avasnot they liable at all, and introduced evidence to su- and the issues Thus contention. their stain entirety from different were last trial facts on appeal, and hence they former on the were what as to the former us in said what was binding be would not its effect the contract changed as applicable issues and facts to the law by this record.” discovered applied actually followed This has principle State, in Mode I follow law of the case was The rule of 350 applied S.W. 2d from a conviction of in this second appeal, of the admission testi the second murder. On good mony relating of the character deceased was The court decided of asserted as error. admissibility, saying: disposed assignment of
“This cannot be because, first ‘law the the rule of case’ objection testimony tria_, to was no there good character the deceased.” by making objection admissibility If no testimony, objecting, party I from a is not later barred why per- perceive not be can of no reason he should objection trial. mitted to make different on a second objection say In order different cannot necessarily apply trial, made on a we must second just applicable doctrine of waiver, which would be objection. party in a principle If case where a made no applied jury followed in Mode State were party objection then a had made no instructions, who *18 jury object to a trial instruction on a first could on a logic trial after reversal and remand. I can see no permitting permitting party this and make objection different on the second trial. recognize
In this case should be less difficult to urged by appellants the error because we would not simply bugaboo faced with of a trial. third YYe judgment by could reduce the of the award the amount jury anguish. $24,000 The awarded for mental grandparents. correct the error set We could each by reducing $48,000. the amount joins in this dissent.
Brown, J., Roy Wynette Wiles, Wiles Jr. 2d
5-4786 Opinion Delivered March 3, Henry appellant. T. Lohnes Tiner and J. for Swift Segars appellee. IF. B. Howard and Jack This is a divorce action. Justice. Holt, Frank complaint, appellant a divorce her seeks grounds indignities that she be awarded and asks statutory rights, including all of her interest in the her appellee’s appellee’s property. answer is