(dissenting). I dissent from the opinion of the court on petition for rehearing, but deem it unnecessary to add anything to the views expressed in the principal opinion on the question of evidence upon which the new trial is granted. In adhering to the views previously expressed, however, which, if adhered to by the court, would have led to an affirmance, I deem it proper to say that under all the circumstances appearing in this case an affirmance, in my opinion, might well be with a reservation which would permit the defendant to make another motion for a new trial in the trial court upon the ground of newly discovered evidence. This observation is made in view of the forcible contentions of the defendant that the plaintiff’s whole case is a sham; that she has become so adept in the art of simulation as to have deceived both the trial court and the jury; and that defendants are now, and if a new trial is granted will be, amply able to demonstrate the fraudulent character of the claim asserted. Obviously this court cannot consider matters which are not of record and which have not previously been considered by the trial court. It could not pass *76originally upon a motion for a new trial. In view of the character of the case, therefore, and of the contentions made, I would deem it f proper in the interest of justice to affirm the judgment, and give to ) the defendant the right to make a further motion for a new trial on \ the ground of newly discovered evidence. Inasmuch, however, as a I majority of the court grant a new trial unconditionally upon the ground a of prejudicial error, which, in my opinion, does not exist in the record, V.I dissent from the disposition made of the case in the manner indicated in the opinion on the petition for rehearing and from the reasons therein stated. I adhere to the views originally expressed.
I am authorized to say that Mr. Chief Justice Christianson fully concurs in the views expressed herein.