SLATER v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY ET AL

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District Court of Appeal, First District, Division 1, California.

SLATER v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY ET AL.

Civ. 11735.

Decided: August 08, 1941

Muldary & Elkington, of San Francisco, for petitioner. McCutchen, Olney, Mannon & Greene, of San Francisco, for respondents.

On this petition for rehearing it is urged by respondents that the opinion heretofore filed in this case discloses that the court misunderstood the contentions of respondents. It is urged that no contention was made that the waiver did not apply to the $10,000, but that the contention was that, because of the language of the waiver, no waiver was made as to the item of damage involved in the $10,000 portion of the judgment. It is urged that the opinion does not clearly determine whether the judgment as reduced by the remission constitutes a judgment for both the decrease in value of the property, and for the physical injury to the petitioner's property. This court did not misconceive respondents' position. It was, and is, our belief that the two problems are inseparable. In determining that there had been a remission of the $10,000, the court necessarily determined that the judgment for $2,500 constitutes a judgment for all items included within the original judgment for $12,500. Stated another way, so far as the doctrine of res judicata is concerned, the Shell Oil Company by paying the judgment as reduced will be in exactly the same legal position as if the judgment for $12,500 had been paid in full.

The petition for rehearing is denied.

PETERS, Presiding Justice.