
    8617.
    Driskal v. Mutual Benefit Life Insurance Company.
    Decided February 19, 1918.
    Action upon life-insurance policy; ‘from Baldwin- superior court ■ — Judge Park. February 17, 1917.
    
      Sibley & Sibley, for plaintiff.
    
      Brewster, Howell & Heyman, for defendant.
   Bloodworth, J.

A majority of the court is of the opinion that the record in this case and the opinion of the Supreme Court when the original • casé between these parties was before it (144 Ga. 534) show that-'the ■original petition filed by the plaintiff was dismissed on special demurrer; and therefore that the- merits of- the case have never been passed upon, and the court below, trying the case without the intervention of a jury, erred in sustaining the plea of res adjudicata and dismissing the petition. Papworth v. Fitzgerald, 111 Ga. 54 (36 S. E. 311). The writer is in doubt, but.concurs.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.  