*376ON MOTION EOR REHEARING.
SMITH, P. J.The plaintiff’s ninth instruction given by the court no doubt was a correct expression of the law, and as tbe facts therein hypothesized are substantially those found by it, as appears from its finding of facts set forth in our opinion, it inevitably follows that the judgment should have been for the defendant instead of for the plaintiff.
An examination of the opinion in the light of the suggestions contained in the plaintiff’s motion has not had the effect to convince our mind that' the conclusions therein expressed are erroneous, nor that such conclusions, though radically different from those reached by the trial judge, can in fairness be tortured into a reflection upon his ability, learning or integrity. It may be that counsel, whose impartial judgment is warped and biased by an excess of zeal in their client’s behalf, might take the view of the opinion they do, but certainly no enlightened trial judge, such as the one who tried this case is recognized to be, having any just conception of the duties imposed by law upon a reviewing court would take the slightest exception to the opinion in this case. It seems to us that counsel would have found it far more profitable to have expended their energy in pointing out to us errors of law in the opinion rather than vainly endeavoring to resent fancied reflections upon the trial judge.
While entertaining the highest respect for both the learned trial judge and the counsel for plaintiff, we feel warranted in taking the notice of the motion we have on account of its unusual character. The motion will be denied.