GALLICHOTTE v. CALIFORNIA MUT BUILDING LOAN ASS (1937)

In response to the question raised by the petition for rehearing and the answer thereto, and in view of the fact that the judgment of affirmance herein calls for a third trial of the action, it may be stated by way of clarification that our decision holding that there was a material difference between the evidence introduced at the two trials is founded necessarily upon the premise that the testimony given at the first trial by the assistant fire chief as to the origin of the fire in question was on the former appeal deemed admissible for the purpose for which it was offered; otherwise the court in its decision therein would not have emphasized such testimony as one of the important factors upon which it based its conclusion that the evidence at that trial as a matter of law established the origin of the fire. On the other hand, without so construing the decision on the former appeal, there doubtless would be no basis for sustaining as we have the contention of the defendants that the absence of such testimony at the second trial was legally sufficient to take the case out of the scope and effect of the decision rendered on the former appeal. Furthermore, it may be stated that in our opinion the ruling in the case of St. Paul Fire & Marine Ins. Co. v. Southern Pacific Co., 30 Cal.App. 140, 157 P. 247, cited and relied on by the defendants, cannot be said to be controlling here for the reason that there the witness was called to testify purely as an expert, and the opinion he gave as to the origin of the fire in question there was based solely on a hypothetical case, that is, upon a state of circumstances established by the testimony of others; whereas here, as pointed out by the decision on the former appeal, the witness arrived at the scene of the fire while it was in full progress, and his opinion as to the origin of the fire was based entirely upon his own observation of the conditions existing upon his arrival.

The petition for rehearing is denied.

PER CURIAM.