Opinion
No. 4734.
February 17, 1941.
Appeal from the District Court of the United States for the Western District of Virginia, at Lynchburg; John Paul and Alfred D. Barksdale, Judges.
On petition for rehearing.
Petition denied.
For former opinion, see 115 F.2d 625.
M.F. Trader, of Lynchburg, Va., and S.S. Lambeth, Jr., of Bedford, Va., for appellant.
Philip H. Hickson, of Lynchburg, Va. (DuVal Radford, II, and Landon Lowry, both of Bedford, Va., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
The petition for rehearing in this case presents no point not already fully considered by the Court. Appellant's apprehension that the case was not fully considered because decision was announced on the day of argument fails to take account of the custom of the Judges of the Court to read the briefs and appendices in advance of argument. That was done in this case; and, in view of the fact that the case had been twice before the Court previously, and that the only point presented by the appeal was the sufficiency of the evidence, which had been substantially adjudicated on both prior appeals, the decision might have been announced from the bench. While there were certain disparities in the testimony offered on the three trials in the court below, these were matters for the consideration of the jury on the question of credibility and did not affect the sufficiency of the evidence relied upon by plaintiff as establishing his case. It is too well settled to justify discussion that, on motion for directed verdict by defendant, the evidence must be considered in the light most favorable to plaintiff and that the Court will not pass upon the credibility of witnesses.
Petition denied.