(dissenting).
In the light of Erie Railroad Co. v. Tompkins, 58 S.Ct. 817, 82 L.Ed. -, and Ruhlin v. New York Life Ins. Co., 58 S.Ct. 860, 82 L.Ed. -, I think the petition for a rehearing should be granted.
See, Robinson & Patterson v. Goings, 63 Miss. 500; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Yazoo & M. V. R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Case v. Yazoo & M. V. R. Co., 114 Miss. 21, 74 So. 773; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Beard v. Williams, 172 Miss. 880, 161 So. 750; Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539; Rogers v. Lewis, Miss., 144 So. 373; Taggart v. Peterson, Miss., 181 So. 137.
Having assigned originally as one of the reasons for reversal that the, trial court had not followed the federal rule upon the issue of ratification, the opinion denying the petition for a rehearing now asserts that the case was wrongly tried below as a matter of general law. I do not find in the record support for this statement; and the majority opinion fails to point out any ruling of the trial court inconsistent with the above-cited Mississippi decisions.
After dismissal as to the surety, this action in essence and in fact was in tort and not in contract. It is apparent that the court and the parties so regarded it. The fact that the pleadings were not amended, as admittedly they might have been, so as to bring the merits of the tort action fairly to trial was evidently not deemed necessary by any one in the court below. Since forms of actions are abolished by statute in Mississippi,1 and since a federal statute provides that, on appeal, this court shall give judgment after an examination of the entire record before it, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties, 2 I am at a loss to understand the reasons of reversal at this time other than those stated in the original opinion of the majority. Those reasons were, substantially, that the rulings of the court below did not conform to the general law as announced by the federal courts. Such reasons were swept aside in large manner by Erie Railroad Co. v. Tompkins; and I think, if the judgment of reversal in to be adhered to by us, we should point out wherein the law as announced in the Mississippi decisions was not followed by the court below. This has not been done in either the original opinion or the opinion overruling the petition for a rehearing.
If no error on the trial was committed under the law in Mississippi, the reason for a new trial is not now apparent, since no federal statute or constitutional provision *253is held to have been contravened, and the doctrine of Swift v. Tyson has been overruled. If there was error and we shall fail to point it out, such error may be repeated on another trial. Where the verdict is excessive, the Mississippi practice of lopping off an excrescence by means of a remittitur conforms to the federal rule and is not in contravention of any federal statute or constitutional provision. This was made clear in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, where a distinction was drawn between an additur and a remittitur, the former being held to be contrary to the Seventh Amendment, U.S.C.A.Const. Amend. 7.
In a nutshell, the rulings of the district court were in line with the laws of Mississippi, and there is no occasion for a new trial. This is what we held on June 10, 1938, in Wichita Royalty Co. v. City National Bank of Wichita Falls, 5 Cir., 97 F.2d 249. In that case, decided last week, Judge Sibley said: “We think our conclusions are in line with the law of Texas and that there is no occasion for a rehearing.”
For these and the additional reasons stated in my former opinion in this case, I respectfully dissent.
Miss.Code of 1930, Sec. 521; Evans v. Miller, 58 Miss. 120, 38 Am.Rep. 313; 28 U.S.C.A. § 724.
28 U.S.C.A. § 391,