(dissenting).
I would grant the petition for rehearing for these reasons:
First: The court en banc should consider and decide the primary critical issue of first impression at the appellate level whether testimony of a chairman of a Civil Aeronautics Board (CAB) investigating team based on his official report to the CAB of an airplane accident investigation is inadmissible as “hearsay” to the extent that it embraces factual data and mathematical calculations premised thereon, assembled by him or under his direct supervision by a team member, which he has “checked” and found “to be true”. I hold to the view that such evidence is not “hearsay”.
Second: The record does not sustain this Court’s factual determination that “Schmidt [a member of the CAB team] had to make certain assumptions and choices relative to the physical facts found at the crash scene before he could reach the final computation stage”, and that “Furthermore, the testimony of Searle [chairman of the CAB team] indicates that he had no knowledge of how Schmidt arrived at his final figures and what assumptions were made in the process.” The trial record affirmatively establishes that Searle testified in his deposition that he had supplied to Schmidt the factual physical data which formed the premise of Schmidt’s mathematical calculations; thereafter, he “checked” the contents of his summary report which included the physical data and calculations and found them “to be true”; all the facts stated in his report were *634based solely on the evidence assembled in the accident investigation by him or members of his team under his direct supervision; and, that as far as he knew Schmidt had not moAe any “assumptions” in making his calculations. With reference to the foregoing it appears that our determination that Schmidt had made “assumptions” rested on the opinion expressed by LaVake, defendant’s expert, that he must have done so. On this score, it must be noted that the trial judge had specifically — and correctly so —instructed the jury that it was its duty “to determine” whether the hypothetical questions put to all the experts “have any assumptions that were not established by the evidence.” The jury’s verdict in favor of the plaintiff establishes that the evidence was not based on “assumptions” and in making a contrary determination we usurped the jury’s function of choosing between Searle’s testimony that no assumptions had been made and LaVake’s estimate to the contrary. In doing so we disregarded the Seventh Amendment of the Constitution.
Third: Assuming arguendo that the data based on Schmidt’s calculations was inadmissible as “hearsay” and was thus erroneously permitted by the trial court to be used as the premise of a hypothetical question put to plaintiff’s experts designed to elicit their opinions as to whether the plane crash was due to wilful misconduct on the part of its pilot, the defendant “cannot now be heard to complain” since it “acquiesced” in the erroneous admission when it put virtually the identical hypothetical question to its own experts. Vtfe have just so held in Roberts v. United States et al., and Union Carbide Corporation, et al., 316 F.2d 489, (1963), citing Spears v. Atchison, Topeka & Santa Fe Ry. Co., 255 F.2d 780, 784 (7 Cir. 1958).
Finally, I would limit a new trial to the issue of liability in view of the court’s expressed views with respect to the points raised on the appeal by the defendant on the issue of damages.
The issues of liability and damages had been submitted to the jury in the instant case in separate interrogatories with the approval of the parties, and the jury had been fully instructed by the trial judge that the issues of liability and damages were independent of one another. This Court has in the past limited the trial of issues upon remand under the authority of 28 U.S.C.A. § 2106. Rosa v. City of Chester, Pa., 278 F.2d 876 (3 Cir. 1960); United States v. Calvey, 110 F.2d 327 (3 Cir. 1940). To the same effect see Calaf v. Fernandez, 239 F. 795 (1 Cir. 1917) and Judge Hastie’s excellent discussion in the recent case of Romer et al. v. Baldwin, et al., 317 F.2d 919 (1963).
Judge HASTIE, while not joining in this opinion, would also grant the petition for rehearing.