Gross

We granted a rehearing in this case on the petitions of both parties. So far as concerns the contention of appellee we are satisfied that the holding must stand, but upon consideration of appellant’s contention on the rehearing we are constrained to hold that the evidence bearing on the issue of lost profits was insufficient to go to the jury.

*204 Questions concerning the sufficiency of the evidence bearing on this issue were inadequately treated in the original brief and argument of appellant. The evidence now specifically called to our attention shows that appellee’s loss of business was at least in part attributable to the advent of competing theatres and to the prevalence of the depression. We think there was no rational basis upon which the jury might approximate the amount of the loss caused by appellant’s wrongful act, as distinguished from the loss due to other factors.

According to one of his managers appellee commenced to reduce prices after competing theatres were opened in Juneau and Ketchikan. This witness testified that from May, 1929, to May, 1933 the Juneau prices dropped from $1 to 40 cents, and possibly as low as 25 cents, and that the Ketchikan prices…

I concur in the holding of the majority on the second appeal, and on rehearing except with respect to the right of recovery of lost profits.

On the first appeal three judges of this court held that lost profits could not be recovered in the cause. 86 F.2d 925, 930 , 5 Alaska Fed. 854 . On the second appeal, two judges of this court (neither of whom participated in the first appeal) and a district judge held that the decision of thethree judges of this court first mentioned was' a dictum, but if not “it was ill-advised and should not be followed”. 120 F.2d 308 , 10 Alaska 94 . I am not in accord with these latter statements.

I think it is apparent that the decision on the first appeal was not a dictum but an alternative ground of the decision and was therefore of equal validity with the other ground given. United States v. Title Insurance Co., 265 U.S. 472, 486 , 44 S.Ct. 621 , 68 L.Ed. 1110 . The question as to whether lost profits may be recovered was not open for decision on the second appeal, and I believe the decision thereof was erroneous. People of State of Illinois v. Illinois Central R. Co., 184 U.S. 77, 91 , 22 S.Ct. 300 , 46 L.Ed. 440 . The point is akin to the…

I dissent.

For reasons stated in my former opinion in this case ( 120 F.2d 301, 308 , 10 Alaska 94 ) appellee should prevail.