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NOLLNER et al. v. SHAWVER.

No. 13232.

United States Court of Appeals, Fifth Circuit.

Jan. 18, 1951.

Rehearing denied Mar. 20, 1951.

Holmes, Circuit Judge, dissented.

Philip S. Kouri, Z. D. Allen, Wichita Falls, Tex., for appellants.

Hobert Price, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

PER CURIAM.

As a part of their motion for rehearing, the appellants present a supplemental transcript of the record from which it appears that the contention was made prior to the Court’s charge to the jury that the -issue of unavoidable accident was not in the case and should not be charged. The statement in the opinion that “Counsel for the plaintiff attempted to except to the charge” [186 F.2d 237, 238] may be subject to the construction, as now complained of, that there was no proper effort made to present the exception, but what we meant was that the statement of the exception was interrupted by the Court’s ruling that “you did not question the propriety -of the giving of the charge, you had an opportunity to do so.” In view of the supplemental transcript, it appears that there is no basis for any determination that counsel for the appellants first acquiesced in the propriety of the proposed charge, and then attempted to except to it, and the portion of the opinion with reference to this feature of the case is therefore withdrawn.

The 'question remaining then is whether the giving of the charge over the objections constituted reversible error. As to this, the majority is of the opinion that the appel-' *898lant’s contention of reversible error is not established in this case.

The motion for a rehearing is denied, and the judgment of affirmance heretofore entered adhered to.

HOLMES, Circuit Judge, dissents.

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