On Petition eoe, Rehearing.
Batman, J. —6. 7. Appellant has filed .a petition for a' rehearing in this cause, in which he asserts that his' complaint is sufficient as a common-law action for the relief sought, regardless of §589 Burns 1914, §563 R. S. 1881, and that this court therefore erred in affirming the judgment of the‘’trial court. In determining the sufficiency of appellant’s complaint, we were compelled to consider it under the well-settled rule that a complaint must proceed on a single definite theory, and that, the plaintiff, if he recovers at all, must recover on the theory adopted therein. McGlone v. Hauger (1913), 56 Ind. App. 243, 104 N. E. 116; Barrett v. Cleveland, etc., R. Co. (1911), 48 Ind. App. 668, 96 N. E. 490; State, ex rel. v. Scott (1908), 171 Ind. 349, 86 N. E. 409. In doing this we adopted the theory apparent on the face of the complaint, being that for which appel-¡ lant originally contended, and determined the,1 merits of the appeal accordingly. Appellant made no' claim in his original brief that he sought any relief under the common law, or that his complaint was drawn thereunder and should be so considered. *222Such, contention is now made for the first time in a petition for a rehearing, and therefore cannot he considered in order to reverse the judgment of the trial court. Chicago, etc., R. Co. v. Coon (1911), 48 Ind. App. 675, 93 N. E. 561, 95 N. E. 596; Evansville Furn. Co. v. Freeman (1914), 57 Ind. App. 576, 105 N. E. 258, 107 N. E. 27; Vermillion v. First Nat. Bank (1914), 59 Ind. App. 35, 105 N. E. 530, 108 N. E. 370; Trook v. Trook (1916), 63 Ind. App. 272, 113 N. E. 730.
We have caréfully considered the other questions presented in the petition for a rehearing, hut find no reason for changing the conclusion stated in the original opinion.
Petition for rehearing overruled.
Note. — Reported in 115 N. E. 956, 117 N. E. 260.