Reynolds Metals Company, and Cross-Appellees v. Julius Lampert and Evelyn Lampert, and Cross-Appellants

Appellants, Reynolds Metals Co. and Henry W. Shoemaker, petitioned for rehearing in banc, and were granted a rehearing limited to the question of punitive damages before the panel which heretofore acted in this case.

Motions of several firms for leave to file amici curiae briefs on the question of punitive damages were also granted.

The amici curiae briefs, however, were of little value as, for the most part, they . present matters outside the issues of this case.

To bring this case into proper focus, it should be reiterated:

(1) That jurisdiction in this case is based on diversity of citizenship and that the federal courts must apply the law of the State of Oregon. Erie R. Co. v. Tompkins (1938), 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 .

(2) That the settling of fluorides from appellants’ plant on appellees’ property constituted trespass as a matter of law in the State of Oregon. Martin v. Reynolds Metals Co. (1959), 221 Or. 86 , 342 P.2d 790 .

(3) That the Supreme Court of Oregon has said that the jury may award punitive damages if “ * * * the injury was done maliciously or willfully and wantonly or committed with bad motive or recklessly so as to imply a disregard of…