Gladwell v. Scarbrough

ON REHEARING

Appellant, in her application for rehearing, asks that we modify our judgment so as to permit a retrial of the case below, including the negligence count.

Again, we would point out that only the ruling of the trial court on the wantonness ■count was questioned in this court.

No review was invoked as to the negligence count. There had been a trial and verdict by the jury on the negligence count, and we must assume that the parties were satisfied with the trial and verdict on this count for there were no errors assigned in this court relating to that part of the case.

The only issue before us was the refusal to permit the wantonnesc count and the evidence in support thereof to go to the jury. We decided that the trial court erred in not permitting this to be done.

The case was remanded for retrial only as to the wantonness count.

We can consider only those rulings of the trial court assigned as error. Pruitt v. U. S. Fidelity and Guaranty Co., 280 Ala. 570, 196 So.2d 688. This we have done.

Furthermore, we consider appellant’s request for a remand for a trial de novo to be in effect a request for a determination of the negligence issue on rehearing when no assignment of error was made relating to the negligence issue on the original appeal.

It is settled that new issues cannot be raised for the first time on application for rehearing. Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771.

Furthermore, we are satisfied that no good purpose would be served by a compíete retrial of this case.

Our directions for the retrial of this matter remain unchanged.

Opinion extended.

Application for rehearing overruled.