The petition for rehearing states that this Court omitted and failed to decide a vital question in this case. The question referred to is in substance this: When at the conclusion of all the evidence in a case the defendant moves the court for an instructed verdict, which he is entitled *Page 560 to, and the defendant is compelled to take a writ of error to reverse an adverse verdict and judgment, which reversal he secures, is he not upon a remand of the case entitled to a judgment as a matter of law?

If it were necessary or appropriate for us to rule upon this question in this proceeding, the abstract question as thus stated would doubtless be answered in the affirmative. But this question is not here presented to us for a decision. It will be observed that this question was not referred to in the opinion of this Court in the case of Watt and Sinclair of Florida, Inc., v. Hunter, 171 So. 817. There is no mention in the opinion of the fact that a motion for an instructed verdict was made by the defendant at the close of the evidence; nor did this Court adjudicate the question as to whether the court below did or did not err in refusing the motion. By a divided Court it was merely held that the weight of the evidence was to the effect that Lord was an independent contractor, as set up in one of defendant's pleas. Two of the Justices of this Court were of the opinion that the evidence presented to the jury was so conflicting that its settlement of that question in favor of the plaintiff should not have been disturbed. It is well settled in this State that if the evidence is conflicting or admits of different reasonable inferences, or if there is some evidence tending to prove the issue, a motion for an instructed verdict should be denied and the case should be submitted to the jury, and not taken from the jury and passed upon by the court as a matter of law. But where under the evidence the jury could not lawfully find a verdict for the plaintiff, a verdict in favor of the defendant should be instructed, and failure to do so constitutes reversible error for which a judgment for plaintiff will be reversed. In such a case, there is nothing in the original opinion in this case which could be construed as holding that a negative *Page 561 answer should be given to the question above referred to, which question it is not necessary here to decide. In this general connection see our recent case, not yet reported, of Talley v. McCain, and the opinion on petition for rehearing in the case of Dudley v. Harrison, McCready Co., which is not yet reported. The opinion on the original hearing in the latter case appears in173 So. 820. See also 3 Am. Jur. p. 705, et seq., 5 C.J.S. pp. 1477, 1547, 1548; and Gravette v. Turner, 77 Fla. 311,81 So. 476; Rivers v. City of Gainesville, 115 Fla. 602, 155 So. 844; 13 Encyc. Dig. Fla. Reports, 305-313, and Baltimore Carolina Line v. Redman, 295 U.S. 654, 79 L. Ed. 1636.

Petition for rehearing denied.

ELLIS, C.J., and TERRELL and BUFORD, J.J., concur.