Williams v. Superior Airways, 9746

• Decision Date: 22 December 1959
• Docket Number: No. 9746,9746
• Citation: 78 S.D. 203,99 N.W.2d 885
• Parties: Blanche C. WILLIAMS, Plaintiff and Appellant, v. SUPERIOR AIRWAYS, a Corporation, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 885

99 N.W.2d 885

78 S.D. 203

Blanche C. WILLIAMS, Plaintiff and Appellant, v. SUPERIOR AIRWAYS, a Corporation, Defendant and Respondent.

No. 9746.

Supreme Court of South Dakota.

Dec. 22, 1959.

Appeal from Circuit Court, Pennington County; Thomas Parker, Judge.

On petition for rehearing.

For original opinion see 99 N.W.2d 224.

Gunderson, Farrar & Carrell, Rapid City, Melville C. Williams, Pope & Ballard, Chicago, Ill., for plaintiff-appellant.

Bangs, McCullen & Butler, Thomas H. Foye, Rapid City, for defendant-respondent.

PER CURIAM.

Appellant's petition for rehearing is mainly based on the assumption that there was a mutual mistake of law and calls to our attention Fransen v. State, 59 S.D. 432, 240 N.W. 503, not previously cited by counsel. The Fransen case is founded on different facts and clearly distinguishable from the present action for there the mistake of plaintiff was confessed or admitted by the demurrer; here the trial court's finding was to the contrary, that there was no mistake. As the opinion states this finding cannot be disturbed because the evidence does not preponderate against it.

The rehearing is denied.