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District Court of Appeal, Second District, Division 2, California.

CONTINENTAL MANUFACTURING CORP., a corporation, Plaintiff, Cross-Defendant and Respondent, v. UNDERWRITERS AT LLOYDS LONDON, an association, Defendant, Cross-Commplainant and Appellant.

Civ. 24762.

Decided: November 17, 1960

Callaway, Kirtland & Packard and Abe Mutchnik, Los Angeles, for appellant. Carl G. Cramoline and Elwood Bowles, Los Angeles, for respondent.

In its petition for rehearing respondent asserts that, assuming the correctness of our decision that the lease agreement entered into by respondent with Bell Air Service released Bell from any liability for damage to the aircraft by reason of Bell's negligence, respondent was nevertheless entitled to judgment against appellant because there was no evidence that respondent had any rights against Bell to which appellant would have been surogated except for the provisions against liability in the agreement.

This contention is raised for the first time in the petition for rehearing. The point was not advanced in respondent's briefs on the appeal nor was it advanced in the trial court. To the contrary, the entire matter was submitted to the trial court to be decided by it as a matter of law dependent on the interpretation placed by it upon the lease agreement.

Petition for rehearing is denied.