dissenting and concurring:
Our original disposition of February 14, 19831 in this case was succinct and said all that seemed necessary to dispose of the case at the time. It was as follows:
“Before: CHAMBERS, ROBB * and ALARCON, Circuit Judges.
“In this diversity case, on a motion of defendants for judgment N.O.V. and a motion for a new trial (after a jury verdict of $400,270 against defendants), the trial court ordered the verdict to stand unless the plaintiff and defendants agreed on a remittitur of about $100,000 and simultaneously waived their rights of appeal. Plaintiff was agreeable, defendants were not, so the court ordered judgment for the amount of $400,274, the amount of the verdict.
“One could, as the trial judge did, have a feeling that perhaps natural justice was done or would have been done if somehow the verdict had been reduced to $300,000, but we can find no precedent for the novel, ingenious way the motions were handled. But there is precedent for a court on a motion for a new trial to order a new trial when it thinks the award excessive, or to condition a denial on a remittitur by a plaintiff.
“Our holding is that the order was voidable on appeal.
“Defendants object to other rulings, but there is little reason for them to reoccur on a second trial, save the issue of different evidence for the case to go to the jury. For example, there was an item of the admission hearsay evidence of an employee of one defendant. We assume that the employee can be found and can testify.
“We hold there was sufficient evidence of negligence to go to the jury.
“The case does cry out for settlement or disposition at an early date.
“We ask, not order, that a new trial, if there must be one, be given high priority. We can expedite a new appeal.
“The panel as constituted for this appeal will retain the case, if it comes back.
“The case is remanded for a trial on all issues consistent herewith.
On February 28, 1983, plaintiff-appellee filed a petition for rehearing and alternatively asked for a rehearing en banc. He asserted grounds or points as follows:
“I. At most, this case should only be remanded to the district court for further proceedings to condition a denial of the motion for new trial upon remittitur.
(1) Unnecessary expense and delay of new trial
(2) The traditional reasons for new trials are absent in this case
(3) Harmless error rule applies.
“II. The trial court’s vacation of its order granting remittitur and subsequent reinstatement of the judgment on jury verdict was within the court’s plenary power to reconsider, revise, alter, or amend an interlocutory order.
“HI. A partial new trial would be preferable to a retrial on all issues.”
On June 13, 1983, defendants-appellants Dependable Trucking Co. and Martin Lem*605mons, at our request, filed a response to the petition asserting:
“II
“Legal Discussion..............
“Dependable and Lemons [sic] are entitled to an order for new trial because
(A) the district court denied Dependable and Lemons [sic] a fair trial by arbitrarily preventing them from making a meaningful defense and
(B) the district court expressly determined that the jury’s finding that plaintiff was not contributorily negligent was based on false evidence and was against the weight of the evidence.
A. Dependable and Lemons [sic] should have an unconditional new trial on all issues in this case because they have never had an opportunity to present a meaningful defense
B. Where, as here, the trial court specifically determines that jury findings are erroneous on both issues of liability and damages it has a duty to grant an unconditional new trial..”
Then, on July 27, 1983, Judges Robb and Alarcon entered an order withdrawing our Memorandum of February 14,1983. (Judge Robb had returned to the case after an extended illness.) In due course, on Septembér 9,1983,1 dissented from their order. Thereupon, on September 9, 1983, the same day, the majority filed an Opinion.
I now dissent again, but I do concur in the result of the Opinion filed on September 9,1983. The bottom line is that both dispositions order a new trial. What is the difference? The main difference is that the new majority goes out of its way to upbraid a trial judge who as chief judge had been forced to accept a full load of trial work and still had heavy duties of chief judge for a court of over 20 judges, senior and active. I thought then, and I think now, that his irascibility in the first case would not reoccur because he now, as a senior judge, need not be overburdened. In my early days here I may have tried to preach to trial judges, but I found it was ineffective.
I still await the time when someone will tell me why every issue covered in the case in the Memorandum of February 14, 1983, and in the petition for rehearing could not have been handled in an Opinion or Memorandum thereon, instead of substituting a new Opinion which may be expected to result in the delay of new petitions for rehearing. The new majority could have even in their ruling stated that the Memorandum of February 14,1983, was superseded by its views expressed in the rehearing order.
If the plaintiff outlives this litigation, he may be a great, great grandfather.
“The Honorable Roger Robb, Senior United States Circuit Judge for the District of Columbia, sitting by designation, participated in the argument but not in the disposition.” [End of Memorandum.]
. Amended by order filed July 19, 1983, to correct printer’s error.