The opinion
Garoutte, J., concurring.
The evidence m the record is wholly insufficient to support plaintiff’s complaint. Of the many elements of the case absolutely necessary to be proven in order to establish a cause of actionf hardly one is sufficiently made out. Yet plaintiff has recovered a judgment for more than one hundred thousand dollars upon this evidence, and insists that the validity of such judgment be ratified by the court. To obviate the results which would necessarily flow from this dearth of evidence, to wit: a reversal of the judgment, the principle of the law of the case is invoked, and a former decision.of this court relied upon, wherein it is said that “the plaintiff produced testimony tending to prove his side of the case.” (Citing the testi *525 mony, Mattingly v. Roach, 84 Cal. 207 .) Conceding the evidence to be the same upon both appeals, still I do not think this declaration of the court should be held equivalent to a declaration that plaintiff by the evidence established a prima facie case for a recovery. At that time the matter under consideration was the validity of an instruction, and the sufficiency of the evidence only incidentally arose upon the discussion of that question. While in a certain sense the language of the court is not obiter, still it is closely allied to it. The sufficiency of the evidence was not the direct question with which the court was dealing, and it is entirely apparent from the context, that the court, in making the statement quoted, never intended to so pass upon the sufficiency of plaintiff’s evidence, as to forever foreclose a trial court, or this court, from declaring it insufficient to establish a prima facie case.
If the court did not intend to make any law of that kind for the case, to hold that such law was made would be treating the doctrine here invoked most kindly and liberally, while, upon the contrary, it has been recognized always and everywhere as a harsh doctrine, and one which has nothing to commend it to the favor of courts.
I concur in the judgment.
Chief Justice Beatty and Justice Habbison being disqualified took no part in the decision of the foregoing cause.
Rehearing denied.