(concurring in part, dissenting in part).
I concur in that portion of the majority opinion which reverses the judgment of the trial court, but dissent to that portion of the opinion which remands the cause for further proceedings. In my judgment, we should direct the trial court to enter an order overruling defendant’s petition for a new trial because of impossibility to make case made.
In addition to the facts set forth in the majority opinion, I find the transcript of the testimony prepared by plaintiff is relatively short, does not present a complicated set of facts, and clearly delineates the evidence and the issues for review. In examining the entire record in connection with the specifications of error set forth in defendant’s motion for a new trial on the merits, I am of the opinion that this Court could fully and completely determine the alleged specifications of error on a substantially correct and accurate record of all the proceedings.
I am also of the opinion that when the findings of the trial court are considered in connection with the entire record, that if the trial court had exercised its discretion in determining whether defendant was entitled to a new trial because of the impossibility of making case made, and had granted the new trial, such action would have been an abuse of discretion, arbitrary and capricious. Under these circumstances, this Court should render the kind of judgment the trial court should have rendered.
I therefore respectfully dissent to that portion of the opinion which remands the cause for further proceedings.
I am authorized to state that Mr. Chief Justice BLACKBIRD concurs in the views herein expressed.