ON MOTION FOR REHEARING
Decided June 26, 1933
BY THE COURTSubmitted on application of defendant in errpr for a rehearing.
*54The brief in support of the application for rehearing proceeds upon the theory that our decision is in conflict with the syllabus in Hawker v Hawker, 14 Abs 113, wherein is announced the often stated rule controlling reviewing courts on a reversal of a case on the weight of the evidence. We recognize that this court cannot reverse upon mere difference of opinion but that the evidence when fully and fairly considered must disclose that the judgment of the trial court is manifestly 'against the weight thereof. The record, in this case, in our judgment, as indicated in our former opinion, supports the finding that the judgment of the trial court was manifestly against the weight of the evidence. As we indicated in our former opinion the evidence given full weight, in its most favorable light falls short of sufficient proof of gross neglect of duty.
Our attention is directed to a number of excerpts from the record and counsel has, in a most capable manner, drawn inferences favorable to the contention of the defendant in error. The inferences so drawn are possible and all are called to our attention in the original brief. We discussed practically all of them in our former opinion.
At no time have we undertaken to condone or excuse anything that the plaintiff in error has done, nor do we pretend to say that he acted properly at the times and in the situations appearing in the record. He admittedly was guilty of impropriety. But we are required to pass upon the evidence in the record as it relates to the requisites of proof of gross neglect of duty under the law.
A fair consideration of all the record is convincing to the court that the evidence does not support the judgment by the requisite degree of proof. The application for rehearing will be denied.
HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.