SUPPLEMENTAL OPINION ON REHEARING
GEORGE ROSE SMITH, Justice.
In a rehearing petition appellant argues that the controlling distinction between misfeasance and nonfeasance was waived by the appellee because it was not specifically argued in Bluegrass's appellate brief. The point, however, is that the distinction is not a matter of defense, subject to waiver. It goes to the existence of the plaintiff's cause of action. Hence even if the case were tried and...
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