Opinion
Record No. 2613.
June 15, 1943.
Present, Campbell, C.J., and Hudgins, Gregory, Eggleston and Spratley, JJ.
ON REHEARING.
Reversed in part and remanded.
Rixey Rixey and F. Gordon Hudgins, for the plaintiffs in error.
Phillips Marshall, for the defendant in error.
On the petition to rehear, we adhere to our former opinion holding the defendants liable on the verdict of the jury fixing their liability in the sum of $70,000. However, it is stated in the petition to rehear that the decedent, William Alexander Edwards, left surviving him a legitimate child, Otis Edwards, now five years of age, who resides in South Carolina. This statement is controverted. However, this issue was not presented to the trial court and therefore the verdict of the jury, awarding damages to the administratrix with direction to pay the full amount to Betty Jean Edwards, was returned without the knowledge of the possible existence of any other surviving child of decedent. Otis Edwards should have an opportunity to prove his right, if any he has, to share in the $10,000 verdict returned by the jury against the plaintiffs in error.
For these reasons, the former judgment of this court is set aside and vacated and that part of the verdict of the jury and the judgment of the trial court, directing the administratrix to pay to Betty Jean Edwards the full amount of damages allowed, is set aside and the case is remanded to the trial court to determine the person or persons, if any, who, under Code, sec. 5788, are entitled to share with Betty Jean Edwards in the amount of damages awarded the administratrix, and, upon such determination, to enter a final judgment on the $70,000 verdict in accordance with its findings.
Reversed in part and remanded.