Opinion
No. 37044.
Filed June 20, 1969.
Appeal from the district court for Douglas County: PATRICK W. LYNCH, Judge. On motion for rehearing. See ante p. 134, 165 N.W.2d 738, for original opinion. Former opinion withdrawn. Affirmed.
Edward Shafton and Bernard Vinardi, for appellant.
John R. Douglas and Cassem, Tierney, Adams Henatsch, for garnishee-appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is an action in garnishment involving the question of the liability of the Reserve Insurance Company on a policy of insurance issued by it on the automobile of Robert Lee Knecht. A statement of the facts in the case will be found in Trausch v. Knecht, ante p. 134, 165 N.W.2d 738. After a trial, a judgment was entered for the plaintiff and against the Reserve Insurance Company in the amount of $10,000. The motion of the Reserve Insurance Company for a new trial was sustained. The plaintiff appealed from the grant of a new trial and the Reserve Insurance Company, the garnishee, cross-appealed. This court by its opinion in Trausch v. Knecht, supra, affirmed the action of the trial court in granting a new trial, but directed a dismissal of the action.
After a reconsideration of the case on rehearing, in the light of new arguments advanced in the briefs on rehearing, we have concluded that the trial court was correct in sustaining the motion for a new trial and that we were in error in directing a dismissal of the action. The inconclusiveness of material evidence and the indefiniteness of the parties in the applicability of certain principles of law flowing therefrom requires, in the interest of justice, that a retrial be had in the district court.
We therefore withdraw our former opinion and direct that the cause be remanded to the district court for a new trial on all issues. In other words, the sustaining of the motion for a new trial by the trial court is affirmed.
AFFIRMED.