dissents.
RIVES, Circuit Judge (specially concurring) :
For reasons well stated by Judge Hughes in our original opinion, I am convinced that Westinghouse is not entitled to summary judgment. The Ninth Circuit in a Miller Act case has recently stated the rule as I understand it.
“When an issue requires determination of state of mind, it is unusual that disposition may be made by summary judgment. See Alabama Great So. R. R. [Co.] v. Louisville & N.R.R. [Co.,] 224 F.2d 1, 5, 50 A.L.R.2d 1302 (5th Cir. 1955). It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor, during direct and cross-examination, of a witness whose subjective motive is at issue.”
Consolidated Electric Co. v. United States for Use and Benefit of Gough Industries, 9 Cir. 1966, 355 F.2d 437, 438, 439. See also Poller v. Columbia Broadcasting Company, 1962, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458; 6 Moore’s Federal Practice, 2d ed., f[ 56.17 [41.-1]; 3 Barron & Holtzoff, Federal Practice & Procedure, 1967 PP., § 1232.2.
I, therefore, concur in the order denying the appellee’s petition for rehearing.