I am unable to agree either to the order on the petition for rehearing or the procedure followed culminating in it. In the opinion filed in the cause it was *Page 59 decided that the declaration was defective and that the demurrer to it should have been sustained. The opinion concluded with the statement that in view of the decisions of the matters considered it was unnecessary to discuss the amount of the verdicts. A petition for rehearing was filed, which has not been granted, and yet by the above order "if the plaintiffs will enter a remittitur . . . and amend the record to show that the deceased had not remarried and left a lawful wife . . . our former judgment of reversal will be set aside and the judgment of the circuit court permitted to stand for the balance; otherwise the cause will stand reversed for a new trial."

It is my view that the original opinion of the court and the order on petition for rehearing, when construed together, result in considerable confusion. If it is necessary, as stated in the original opinion, that the declaration, in order to entitle the plaintiffs to recovery, must contain the allegation of the nonexistence of the wife of the person who was killed in the automobile accident, then such an amendment of the pleading must be made and the defendants have a right to place that averment in issue. I do not know how the record can be amended to show that fact and yet it is the substance of the order that if such a revision is made the judgment of the lower court will stand for the amount of the verdicts after entry of the remittitur. For these reasons I am unable to concur.

BROWN, C. J., and BUFORD, J., concur. *Page 60