The opinion
Former opinion adhered to on rehearing November 18, 1930.
On Behearing
( 292 P. 1094 )
KELLY, J.
This case was heard in department number two and the judgment of the lower court affirmed in an opinion handed down June 17, 1930. A petition therefor having been filed by appellant and
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a rehearing having been ordered, oral arguments thereupon were presented to the court sitting in banc.
In the original opinion it was decided that the errors now urged, because of certain parts of the court’s instructions, were rendered innocuous by a careful and correct statement of the law by the learned trial judge in other parts of his charge. A painstaking examination of the entire record confirms us in the justice and wisdom of this holding.
The writer of this opinion thinks that it is only the comparatively large amount of the verdict which justifies the very serious and extended consideration that has been given to the final disposition of this case. He also realizes, however, that, except in most unusual and extraordinary instances, such as to indicate the influence of prejudice or passion upon the trial jury, this court should not disturb a verdict; and certainly not when based upon a record, such as this, where the unsuccessful party fully presented its testimony and voluntarily waived argument before the jury upon the facts.
To ascribe an order of reversal to an erroneous portion of the lower court’s instructions, which in other parts thereof the court corrected, when in point of fact the impelling reason for such an order, if made, must be that the verdict seems to be very large, would be intellectually dishonest, ethically indefensible, and expressly forbidden by constitutional mandate. We adhere to the former opinion.
Judgment affirmed.