Arnhold v. United States

• Decision Date: 10 May 1961
• Docket Number: 16368.,No. 16367,16367
• Citation: 289 F.2d 924
• 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

289 F.2d 924 (1961)

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.

May 10, 1961.

Ferguson & Burdell and W. H. Ferguson, Seattle, Wash., for appellants Arnhold et al.

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

Skeel, McKelvy, Henke, Evenson & Uhlmann, W. R. McKelvy and George Kahin, Seattle, Wash., for appellee Fibreboard Products, Inc.

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

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

Before POPE, MAGRUDER and MERRILL, Circuit Judges.

MAGRUDER and MERRILL, Circuit Judges.

The several petitions for rehearing are denied.

POPE, Circuit Judge.

I would grant the rehearing sought by the appellees for the purpose of permitting further consideration by the court of a contention made in the petition of the United States which appears to me at this time to be a valid one. The petition of the United States makes two points: the first is that our opinion here is out of line with what was said in this court's earlier opinion when the case was first here. Rayonier Incorporated v. United States, 9 Cir., 225 F.2d 642, 648; Arnhold et al. v. United States, 9 Cir., 225 F.2d 650. In the first of those two opinions language was used to the effect that "liability may not be predicated on conduct occurring before the spread of the fire to the 1600 acre tract." That language was used with respect to the case as it then stood before the court, namely, upon the pleadings only. Subsequently on remand, the case was tried and heard upon a pretrial agreement and order which superseded the prior pleadings; and for that reason I think the point suggesting that we have disregarded the law of the case is not well taken.

However, as our opinion discloses, we had some difficulty in interpreting the findings of the district court and to a degree we modified them or put our own interpretation upon them. Thus we said: "We do not believe that the district judge could have ever intended to make any such finding." Again we said: "In other words, when the district court finds District Ranger Floe to be initially `negligent', we take it he...