Arnhold v. United States

• Decision Date: 26 October 1960
• Docket Number: 16368.,No. 16367,16367
• Citation: 284 F.2d 326
• Parties: Arthur A. ARNHOLD et al., Appellants, v. UNITED STATES of America et al., Appellees. RAYONIER INCORPORATED, a corporation, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F.2d 326 (1960)

Arthur A. ARNHOLD et al., Appellants, v. UNITED STATES of America et al., Appellees.

RAYONIER INCORPORATED, a corporation, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16367, 16368.

United States Court of Appeals Ninth Circuit.

October 26, 1960.

Ferguson & Burdell, W. H. Ferguson, Donald McL. Davidson, Seattle, Wash., for appellant, Arnhold.

Holman, Mickelwait, Marion, Black & Perkins, Lucien F. Marion, Burroughs B. Anderson, Seattle, Wash, for appellant, Rayonier.

George C. Doub, Asst. Atty. Gen., Charles P. Moriarty, U. S. Atty., Seattle, Wash., Alan S. Rosenthal, Kathryn H. Baldwin, Attys., Dept. of Justice, Washington, D. C., for the United States, appellee.

Wright, Innis, Simon & Todd, Donald A. Schmechel, Roger L. Williams, Seattle, Wash., for appellee, Port Angeles and Western Railroad Co.

A. R. Truax, Trustee in Reorganization. Skeel, McKelvy, Henke, Evenson & Uhlmann, W. R. McKelvy, George Kahin, Seattle, Wash., for appellee Fibreboard Products, Inc.

Before POPE, MAGRUDER and MERRILL, Circuit Judges.

MAGRUDER, Circuit Judge.

This litigation arose out of a forest fire in August and September, 1951, on the Olympic Peninsula in the State of Washington.

A complaint was filed under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. by Rayonier Incorporated, one of the property owners who suffered loss, against the United States of America as sole defendant, charging negligence by employees of the United States in their failure to prevent, control, and extinguish the forest fire. This case is now our No. 16368.

A separate and distinct complaint was filed by Arnhold, and others, whose property was destroyed in the same fire, against the United States of America under the Tort Claims Act and also, by reason of diversity of citizenship, against the Port Angeles and Western Railroad Company, and Fibreboard Products, Inc., one of the owners of land through which the fire spread. Certain insurance companies were added as "additional plaintiffs" in this our No. 16367.

These cases were here on an earlier appeal. At first the district court entered judgment dismissing the complaints as being insufficient in their allegations, and we affirmed, in Rayonier Inc. v. United States, 9 Cir., 1955, 225 F.2d 642, and in Arnhold et al. v. United States, 9 Cir., 1955, 225 F.2d 650. However, the Supreme Court granted certiorari, and setting us right on our misapprehension of the meaning of certain language in Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, vacated our judgments and remanded the cases to the district court with directions to consider the complaints anew "wholly free to determine their sufficiency on the basis of whether the allegations * * * would be sufficient to impose liability on a private person under the laws of the State of Washington." Rayonier Inc. v. United States, 1957, 352 U.S. 315, 321, 77 S.Ct. 374, 377, 1 L.Ed.2d 354.

The two cases were consolidated by the district court for trial. After filing an elaborate opinion and various findings, which were later revised somewhat, the district court entered judgments again dismissing the complaints. Counterclaims by the United States against Rayonier Incorporated and the Port Angeles and Western Railroad Company were dismissed at the same time, but the United States has taken no appeal from this aspect of the judgments and these matters are not before us.

Separate appeals were taken by the losing parties from the above judgments. These appeals were heard by us together and the cases may be disposed of by a single opinion. In the view we take, it is not necessary to go behind the district court's findings of fact.

The fire in question broke out in the Soleduck District. In that district was situated the headquarters of Forest Service District Ranger Floe, who was the government's chief fire control officer in the area. The United States of America entirely owned sixty acres south of the town of Heckelville. Through the top of this 60-acre tract ran the tracks of the Port Angeles and Western Railroad. The railroad's right of way was actually in the railway's possession under executory contracts of sale from the defendant, the United States of America. About noontime on August 6, 1951, a locomotive operated by the defendant railroad started on its right of way in the 60-acre tract the so-called Heckelville spot fire. This fire spread to a 1600-acre area owned in part by the United States and in the remaining part by the defendant Fibreboard Products, Inc. The fire swept through this 1600-acre tract and eventually expanded to destroy the Rayonier property many miles away and also the property of the various plaintiffs in our No. 16367.

Under the Federal Tort Claims Act, we have to determine whether the United States, if it had been a private party, would have been liable for the various losses under Washington law. The amount of these losses has been stipulated and is not now in dispute.

In this connection, we need not rely upon any affirmative obligation of the United States, as legal owner of the right of way, to go upon the right of way of the railroad to suppress the Heckelville fire as soon as it started. But it is the law of Washington, as it is the law generally, that a land occupier has an affirmative obligation to use care to confine any fire on his premises, regardless of its origin, in favor of all persons off his premises who are subjected thereby to an unreasonable risk of damage due to escape of the fire. In addition, in this case the United States had entered into a cooperative agreement, under 16 U.S. C.A. § 572 and R.C.W. 76.04.400, whereby the United States had undertaken to protect all non-United States owned land in the region from fire and to take "immediate vigorous action" to control all fires breaking out in the protected area.

This agreement, which was relied upon by Rayonier and by others, would be the basis of an affirmative obligation of the United States to use care in the premises if there were no other basis of liability on its part in its capacity as land occupier. See United States v. Hull, 1 Cir., 1952, 195 F.2d 64, 69.

The briefs in this case, as well as the findings of the district court, contain a great deal of matter on the subject of "proximate" or "legal" cause. Before we get to the question of legal cause, the defendant's breach of duty must be shown by the plaintiff to be a "cause in fact" of the plaintiff's asserted loss. This involves a finding of fact, of course, and the government seems to maintain that we must necessarily sustain the district judge's finding that the defendant was not a cause in fact of the plaintiff's loss. We do not believe that the district judge could have ever intended to make any such finding. For everybody concedes that the fire that caused the losses in question can be traced back in unbroken sequence to the Heckelville spot fire previously mentioned, which smoldered for a time and perhaps was erroneously thought to be under control, but which ultimately broke loose and spread to the plaintiffs' premises in September of 1951.

Though we have been referred to no Washington case on the point, we may assume the Washington law to be laid down in Palsgraf v. Long Island R. Co., 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, and in Restatement, Torts § 281(b) (1934), that, for a defendant to be liable for an unintended invasion of an interest of another, it is necessary to find that the...