Boice

198 F.2d 790 BRADLEY MIN. CO. v. BOICE. No. 12684. United States Court of Appeals Ninth Circuit. Aug. 27, 1952. John Parks Davis, San Francisco, Cal., Oscar W. Worthwine and Ralph R. Breshears, Boise, Idaho, George Donart, Weiser, Idaho and Arthur B. Dunne, San Francisco, Cal., for appellant. Jess B. Hawley, Jr., W. H. Langroise and W. E. Sullivan, Boise, Idaho, for appellee. Before HEALY, BONE, and POPE, Circuit Judges. PER CURIAM. 1 In this case we affirmed a judgment against the appellant, one member of the court dissenting. 194 F.2d 80 . Appellant petitioned for a rehearing in banc, and rehearing was denied. Application for certiorari followed and was denied. 343 U.S. 941 , 72 S.Ct. 1033 . Upon the coming down of the mandate appellant moved for leave to file a motion to vacate the denial of its petition for rehearing in banc and for the reinstatement of its petition. That motion is the matter before us for disposal. 2 The case was not in any aspect of such character as to suggest the advisability of its being heard or reheard in banc. It involved purely factual issues. Depending upon how the jury might evaluate the evidence, or how appraise the credibility of the witnesses, it…

(dissenting).

I think that a just disposition of this case requires that the appellant be granted an opportunity to reargue the case before the court sitting in bank.

In a recent opinion of this court in bank in Western Pacific Railroad Corporation v. Western Pacific Railroad Company, 9 Cir., 197 F.2d 994 , the court, after denying the right of a defeated litigant to require all of the judges of the court to consider a petition for rehearing of a case originally heard by a division of the court, pointed out that it recognized that certain cases are appropriate ones for consideration by a court in bank. The opinion enumerated certain types of cases which have frequently been treated in this manner.

*792 In my opinion the circumstances make this particular case, in the light of the views expressed by all the members of the court with respect to some of the problems here involved, one in which a hearing in bank should be granted. I think that we, as members of this division which heard the case originally, should recommend a hearing in bank and by our action invite all the judges to participate.

My views in this respect are not based upon the mere fact that I have disagreed…

In this case we affirmed a judgment against the appellant, one member of the court dissenting. 194 F.2d 80 . Appellant petitioned for a rehearing in banc, and rehearing was denied. Application for certi-orari followed and was denied. 343 U.S. 941 , 72 S.Ct. 1033 . Upon the coming down of the mandate appellant moved for leave to file a motion to vacate the denial of its petition for rehearing in banc and for the reinstatement of its petition. That motion is the matter before us for disposal.

The case was not in any aspect of such character as to suggest the advisability of its being heard or reheard in banc. It involved purely factual issues. Depending upon how the jury might evaluate the evidence, or how appraise the credibility of the witnesses, it was concededly a case in which both actual and exemplary damages were awardable. The charges made against the defendant, and presumably accepted by the jury as true on the evidence before it, were for conduct of a nature calculated to blast at the threshold the efforts of a young doctor to establish himself in his profession. The problem presented bore scant resemblance to Southern Pacific Co. v. Guthrie, 9 Cir., 186 F.2d 926 , and…