ON REHEARING.
Hill, C. J.Appellant insists, in motion for rehearing, that the judgment of the court should have been for a dismissal instead of remanding for a new trial, because it alleges there was undisputed evidence of a breach of a warranty contained in the sixth question and answer.
On the trial of the case in the lower court,.there was a peremptory direction to find for the plaintiff, and there were two grounds for a reversal presented here; one the ground mentioned in the opinion, and the other ground the one now urged in the motion for rehearing.
For reasons stated in the opinion, the direction for a peremptory verdict was error. That is as far as the court went in disposing of the appeal, and was as far as it was necessary or proper for the court to go. It is true that where there is an affirmative showing that there can be no recovery, and a new trial would only protract litigation and occupy the time of the courts and increase costs, then it is the duty of the court to dismiss the cause, as was well pointed out by Mr. Justice Hemingway in Pennington v. Underwood, 56 Ark. 53. The ordinary rule of practice on reversal is to remand common-law cases for new trial unless there are exceptional reasons, as above indicated, why there should be a dismissal. The court does not see that this case belongs to that exceptional class. While it appears from the application in the transcript that the sixth question was answered by the assured, • and it also appears from the testimony that it was not truly answered, yet the issue of fact whether or not there was a breach of warranty in regard to it, like the othe'r issue disposed of in the opinion, has not been tried by the lower court, as it refused to go into a trial of these issues, erroneously holding that no defense was offered, whereas the defenses offered should' have been tried, and that is what is now directed. That means, tried first by the lower court as to the sufficiency of the evidence to go to the jury; and, if the court should find it sufficient to go to .the jury, then by the jury to find the truth where there is a conflict, or where there may be different conclusions drawn from undisputed evidence.
There should be a trial of the real issues in the circuit court before this court should exercise its power of dismissal. This is especially true in this case, where the testimony on this trial does not show that other evidence raising proper issues of fact may.not be adduced not inconsistent with the facts now in evidence.
Motion for rehearing is therefore denied.