Opinion
No. 76-1312.
October 24, 1978.
Benjamin M. Garland, F. Kennedy Hall, Macon, Ga., for plaintiff-appellant cross-appellee.
George C. Grant, Macon, Ga., for defendant-appellee cross-appellant.
Appeals from the United States District Court for the Middle District of Georgia, Wilbur D. Owens, Jr., Judge.
ON PETITION FOR REHEARING
(Opinion July 20, 1978, 5 Cir., 1978, 576 F.2d 1084).
The following documents are before us:
1. Appellant's Petition for Rehearing;
2. Appellee's Request for Permission to File Response to Petition for Rehearing of Appellant, and Waiver by Appellee of Right to New trial; and
3. Appellee's Response to Petition for Rehearing of Appellant, and Waiver by Appellee of Right to New trial.
The members of the panel have considered each of such matters and have conferred by telephone as to the action to be taken thereon, and finding the panel in agreement with the action and orders herein contained,
IT IS ORDERED that appellant's Petition for Rehearing be and the same is overruled and denied. Appellant has pointed out that the opinion inadvertently stated in the last sentence that the jury's finding as to lost profits was affirmed. The jury made no finding on lost profits, because the trial court ruled there was not sufficient evidence to submit to the jury, and it is the court's ruling which is affirmed. Therefore, the last sentence [ 576 F.2d at 1094] should have read:
This case is reversed and remanded for a new trial only on damages, and is affirmed in all other respects, including the court's rulings on the issue of lost profits and the jury's findings as to breach of warranty and negligence, including the comparative percentages of 55 and 45 percent.
IT IS FURTHER ORDERED that the appellee's Request For Permission to File Response to Petition for Rehearing of Appellant, and Waiver by Appellee of Right to New Trial shall be granted and the tendered response filed of record herein as of this date by the Clerk.
IT IS FURTHER ORDERED that appellant be given 15 days from the date of this order to accept or reject appellee's written offer to waive the new trial which was ordered on the issue of damages only, as above set forth. In event of acceptance of such offer a further order will be entered herein by the court affirming the judgment of the trial court. In event of rejection the original order, as hereinabove corrected, will stand as the order of this court.
IT IS FURTHER ORDERED that the costs in this court be taxed one-half to appellant and one-half to appellee.