ROBISON et ux.
BROTHERHOOD OF RAILROAD TRAINMEN INS. DEPARTMENT, Inc
Motion for rehearing granted, and previous opinion modified by striking out the directions to enter judgment for plaintiff and substituting directions to grant a new trial and otherwise reaffirmed.
Holmes & Morrison, Tucson, for appellants.
Darnell, Robertson & Holesapple, Tucson, for appellee.
Udall, C. J., and Stanford, Phelps and La Prade, JJ., and Farley, Superior Court Judge, concur.
[74 Ariz. 45] The appellee timely filed a motion for rehearing upon four specific grounds. The first three are without merit as they present nothing more than a reiteration of matters fully covered in our original opinion. The fourth ground is that we erred in the concluding paragraph of the opinion by directing the trial court "to enter judgment for the plaintiff as prayed for in their complaint", for the reason that this would deprive the defendant (appellee) of its day in court by not permitting it to offer evidence in support of its defense upon the issues as made out by the pleadings. The attorney for appellant graciously concedes the correctness of appellee's contention in this respect.
We therefore grant the motion for rehearing upon the last ground stated and modify our previous opinion by striking the concluding paragraph and substituting therefor the following, viz.:
It therefore follows that the order of the lower court granting the motion to dismiss was in error, and for the foregoing reasons the judgment of the lower court is ...