Reversed and remanded on petition for rehearing October 15, 1929
On Petition eor Rehearing
(281 Pac. 182)
PER CURIAM.We have carefully considered the petition for rehearing in this case and nothing therein contained has been sufficient to change our views in regard to the matter stated in the opinion.
We are disposed, however, to modify our former opinion in regard to the procedure. We there held that the testimony offered by the plaintiff and rejected by the court was admissible and that the court erred in rejecting the offer made. Following the decision indicated in our opinion, we held that such offered testimony should be treated as if it had been actually given; and, further, that under subdivision 3c of article 7 of the constitution we would treat it as though it had been actually admitted and affirm the judgment. We had in mind the distinction which subd. 3c of article 7 of the constitution has made in regard to considering the evidence on appeal, but upon further consideration we think it only fair that the defendant should be entitled to a cross-examination in respect to the testimony offered and erroneously rejected, and the court is now of the opinion that the case should be retried on that account rather than we should consider the offer without regard to what a cross-examination might have developed.
The judgment will therefore be reversed and a new trial ordered.
Reversed and New Trial Ordered.
For appellant Mr. A. S. Grant, Mr. E. L. McDougal and Mr. A. A. Smith. For respondent Mr. George Donart and Messrs. Nichols, Hallock S Donald.