Marion Light & Heating Co. v. Vermillion

*687Second Petition for Rehearing.

Myers, J.

— On May 10, 1911, an opinion by this court was filed in this ease affirming the judgment of the court below, and judgment was accordingly entered. On July 5, 1911, appellant petitioned the court for a rehearing. On June 29, 1912, the opinion of May 10 was withdrawn, and another opinion substituted, and the petition for a rehearing then overruled. The result reached in the original opinion was adhered to in the opinion substituted, and the same instructions to the lower court were reaffirmed. At the expiration of thirty days after June 29, the clerk of this court certified to the Grant Circuit Court the decision and instructions of this court. On August 23, 1912, appellant filed a second petition for a rehearing addressed to the substituted opinion, and which appellant designates as the opinion of June 29. Appellant also petitions this court for an order directing its clerk to recall said certified copy as being prematurely and erroneously issued, and in violation of law. §§704, 1418 Bums 1908, §662 R. S. 1881, Acts 1891 p. 39, §14.

"When this court, on May 10, gave its opinion and rendered judgment affirming the judgment of the lower court, the case was determined within the meaning of the statute, §704, supra. Appellant, within sixty days thereafter, took advantage of its right so to do, and filed a petition for a rehearing. That petition was overruled.

12. There is no statute, rule of practice, or rule of court authorizing, the same party in the same case to file more than one petition for a rehearing. Elliott, App. Proc. §558; City of Crawfordsville v. Johnson (1875), 51 Ind. 397; Garrick v. Chamberlain (1881), 100 Ill. 476; Smith v. Dennison (1882), 101 Ill. 657. “The object of a petition for rehearing is to point out mistakes of law or of fact, or both, which it is claimed the court has made in reaching its conclusion.” People, ex rel., v. District Court, etc. *688(1899), 26 Colo. 386, 391, 58 Pac. 604, 46 L. R. A. 850. In this case snch a petition was presented, and it may be said that the court, on a reconsideration of the questions thus presented and theretofore considered, in some respects gave different or additional reasons for reaffirming its conclusion. But there is no claim that any new or different principle of law was announced in the substituted opinion from that declared in the one withdrawn, nor that the rights of the parties thus determined were in any manner changed.

13. 14. It must be conceded that as long as the court had jurisdiction of the case, it had the right, on its own motion or at the suggestion of either or both parties, to change or modify its reasons supporting its conclusion, or reverse its conclusion entirely. In this case the reasons only were changed, “but a wrong reason for a right decision can be no ground for a rehearing, where the decision can be placed upon the proper ground. ’ ’ Wilson v. Vance (1877), 55 Ind. 584.

15. The present petition for a rehearing asks the same relief as did the first, and proceeds on the theory that the case was not determined within the meaning of §704, supra, until June 29. If the filing of the substituted opinion had the effect of granting a rehearing, or to reopen the case, then there would be good reason for appellant’s contention, but it did not have that effect. The ultimate rights of the parties as determined on May 10 remained unchanged. Hence we conclude that the overruling of the first petition for a rehearing exhausted appellant’s remedies in this court, and the filing of the present petition was without warrant of law. . This conclusion sustains the action of the clerk of this court in certifying the decision and instructions of this court to the Grant Circuit Court as upon a final determination of the cause.

It is therefore ordered that the petition for a rehearing now pending be stricken from the files, also that the petition for an order directing the clerk to recall the decision *689and instructions of this court certified to the Grant Circuit Court be, and the same is hereby overruled.

Note. — Reported in 99 N. E. 55, 100 N. E. 100. See, also, under (1, 11) 38 Cye. 1927; (2,5) 38 Cyc. 1930; (3) 38 Cyc. 1869; (4) 38 Cye. 1919; (6) 26 Cyc. 1182; (7) 26 Cyc. 1513; (8) 26 Cyc. 1177; (9) 26 Cye. 1231; (10) 26 Cyc. 1213; (12) 3 Cyc. 218; (13) 3 Cyc. 212, 474; (14) 3 Cyc. 213. As to the doctrine of assumption of risk and contributory negligence in the law of master and servant, see note to Brazil Block Coal Co. v. Gibson (Ind.), 98 Am. St.289; 97 Am. St. 884. As to the duties and liabilities of an electric corporation, see 100 Am. St. 515. As to the applicability of the doctrine of assumption of risk to a lineman, see 15 Ann. Cas. 598; Ann. Cas. 1912 B 467. Liability of electric company to employe injured by electric shock, including question of assumption of risk, see 32 L. R. A. 351. May servant assume risk of dangers created by the master’s negligence, see 4 L. R. A. (N. S.) 848 ; 28 L. R. A. (N. S.) 1215. Servant’s assumption of risk from latent danger or defect, see 17 L. R. A. (N. S.) 76.