#### David Turner v. William O. Rosewarren, et al

5-4883

440 S.W. 2d 769

Supplemental Opinion on Rehearing Delivered June 9, 1969

[Original opinion delivered May 5, 1969, p. 798.]

Carleton Harris, Chief Justice.

We find no merit in the petition for rehearing on the main case, but, in line with our decisions in St. Louis Southwestern Railway Company v. Clemons, 242 Ark. 708, 415 S.W. 2d 332, *1302and Hayes Brothers Flooring Company v. Carter, Admx., 240 Ark. 522, 401 S.W. 2d 6, the cause is remanded for another trial, rather than dismissed. In Hayes v. Carter, supra, we said:

> “Appellant asks that we reverse and dismiss, blit, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly apjjiears that there can be no recovery that we consider it proper to dismiss the cause. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108, and Arkansas Natural Gas Company v. Gallagher, 111 Ark. 247, 163 S.W. 791.”

It might be added that, in remanding this cause, we have given no consideration whatsoever to the so-called “petition for new trial.”