SAFEWAY STORES v. FULLER

SAFEWAY STORES v. FULLER
1943 OK 373
142 P.2d 849
193 Okla. 237
Case Number: 31174
Decided: 11/09/1943
Supreme Court of Oklahoma

SAFEWAY STORES, Inc.,
v.
FULLER

Syllabus

¶0 APPEAL AND ERROR--Decision on first appeal as "law of case."
The decision on first appeal is "law of case" in all subsequent stages, and will not ordinarily be reviewed on second appeal, where facts are substantially the same.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Action by Hattie Fuller against Safeway Stores, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, and Darnell & Gibson, of Clinton, for plaintiff in error.
Mitchell & Mitchell, of Clinton, for defendant in error.

OSBORN, J.

¶1 This is the second appeal of this cause before this court. See Safeway Stores, Inc., v. Fuller, 189 Okla. 556, 118 P.2d 649. Therein we reversed the judgment of the trial court in favor of plaintiff for the reason that plaintiff failed to prove primary negligence on the part of defendant. Upon retrial on the same pleadings plaintiff again prevailed, and defendant has appealed. We have made a close examination of the record and find the testimony substantially the same as in the former appeal.

¶2 It is the well-settled law of this state that where the facts, on a second appeal, are substantially the same as on the first appeal, the decision on the first appeal is the "law of case" in all its subsequent stages and will not ordinarily be reviewed on the second appeal. Harp v. First Nat. Bank of Anadarko, 169 Okla. 548, 37 P.2d 930, and authorities therein cited.

¶3 The judgment of the lower court is reversed and the-cause remanded, with directions to render judgment for the defendant.

¶4 CORN, C.J., GIBSON, V.C.J., and BAYLESS, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur. RILEY, J., absent.