On Motion for Rehearing. In appellant's motion for rehearing it is stated that, "On the trial of this case below the Insurance Company contended that this plane, owned by Corbin, the City's agent, was being pushed out of the hangar in order that it might be flown into the air to test its sound equipment. On the trial the witness Corbin testified that he was moving this plane in the hangar so as to get a plane belonging to a Mr. Graham; but it was shown that Corbin had previously stated that his plane was being moved so that his partner might take the same into the air and test certain sound equipment."
It appears that the previous statement referred to by appellant was made by Corbin to one C. W. Craft, an investigator for appellant. Appellee calls our attention to the following conclusion of law made by the trial judge, viz:
"I now conclude, as a matter of law, that I erroneously admitted in evidence the statement made by O. G. Corbin to the investigator, C. W. Craft, and admitted in connection with the testimony of the said Craft, and such statement has not been considered by me in arriving at my verdict and judgment."
No attack is made here upon the conclusion of law above quoted.
We adhere to our holding expressed in the original opinion, that the movement of the Corbin plane, which resulted in injury to the Greene boy, came within the *Page 921 "exception to the exception" of the policy, regardless of whether such plane was being moved in order to get Tom Graham's plane out of the hangar, or was being moved for the purpose of testing the sound equipment installed thereon. The above statements from the motion and transcript are however set forth in order to make clear the actual status of the record, since our attention has been called to the fact that the trial judge did not consider the statement which Craft said Corbin made to him, but held that such statement was inadmissible in evidence.
If the point be material in any way, the uncontradicted evidence shows that at the time the Greene boy was injured, Corbin was moving his airplane in order that the Graham plane might be taken out of the hangar, although he may have also entertained the intention of later testing the operation of the sound equipment of his plane while said plane was in flight.
Appellant's motion for rehearing is overruled.