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McCormick Coal Company, Inc., Appellant, v. Schubert.

Practice — Trespass — Suit pleaded and tried on negligence theory — Adverse verdict — Seeking new trial on absolute liability theory.

In a suit for trespass for damage caused by water flooding a coal mine, in which the plaintiff pleaded and tried his case on a theory of negligence, and there was a verdict for defendant, and on a motion for new trial plaintiff endeavored to change the theory of his case to one of absolute liability and complained that the charge was inadequate with respect to such theory, it was Held that the question of absolute liability was raised too late and that the motion for new trial should be dismissed.

OPINION PER CURIAM, November 8, 1954:

The judgment of the court below is affirmed on the opinion of Judge GRAFF, specially presiding.

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MCCORMICK COAL CO., INC. v. SCHUBERT
(Nov 8, 1954)