(dissenting).

I dissent. While I realize the intend-ments which should be given a trial judge who saw and heard the witnesses, yet I believe here a clearly erroneous result has been reached. Therefore, I would reverse.

Parenthetically, I think I should state, while I respect “law of the case,” we should keep in mind that as a result of Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631 , 69 S.Ct. 762 , 93 L.Ed. 931 , our decision in Lawrence Warehouse Co., 164 F.2d 773 , was destroyed entirely and completely. Therefore, we have no “law of the case” remaining from our first decision in 164 F.2d. There this court said, “Now if Capitol was negligent in safeguarding the goods it follows as a matter of course that its dereliction is imputable to its. principal, Lawrence.” 164 F.2d 773, 776 .

The conclusion that imputed negligence was the sole basis of Lawrence’s liability has to be taken from the trial court’s opinion in Defense Supplies Corp. v. Lawrence Warehouse Co., D.C., 67 F. Supp. 16 , rendered some three months before the findings of fact, conclusions of law and judgment were signed and filed *177 on April 15, 1946. To me the findings and judgment holding Lawrence liable do not fix the liability of Lawrence on the ground that it was the innocent principal of a negligent agent. I read the findings as establishing a primary liability for negligence on the part of Lawrence and not an imputed one. 1 If resort to an opinion amplifies findings, well and good. But when the findings are inconsistent, I had supposed the law was that the “findings of findings” superseded the “findings of an opinion.” However, the majority may be correct as a practical matter that the trial judge never intended to fix a primary responsibility on Lawrence, the record, as I read it, to the contrary notwithstanding. 2

In the first case of Defense Supplies v. Lawrence and Capitol, to put it in the vernacular, bells have been rung that we cannot now unring: The findings in that case say:

and then the conclusion of law is entered as follows:

Therefore, judgment was entered including the following:

To me the findings are clear and explicit that there was joint and concurrent negligence. To me, where there is respondeat superior liability it is unobjectionable to say the parties are jointly liable. Perhaps even “jointly negligent” could include respondeat superior liability, but how “concurred and joined together to destroy plaintiff’s goods” can be taken to admit of the concept that the trial court did actually only fix respond-eat superior liability upon Lawrence is beyond my understanding.

I think the finding means “concurrent negligence.” Concurrent negligence is defined in Merrill v. Los Angeles Gas & Electric Co., 158 Cal. 499 , 111 P. 534 , 31 L.R.A.,N.S., 559. It is illustrated in Parkin v. Grayson-Owen Co., 25 Cal.App. 269 , 143 P. 257 and Cummings v. Kendall, 34 Cal.App.2d 379 , 93 P.2d 633 . See also Lyric Amusement Co. v. Jeffries, 58 Ariz. 381 , 120 P.2d 417 ; Salt River Valley Water Users’ Association v. Cornum, 49 Ariz. 1 , 63 P.2d 639 , and Marinkovich v. Tierney, 93 Mont. 72 , 17 P.2d 93, 95 .

The judgment against both Capitol and Lawrence below may be unfair. I express no opinion. But when Reconstruction Finance Corporation sued on it, both Lawrence and Capitol were already irrevocably saddled with it. Similarly I think that Lawrence and Capitol were hobbled by the findings that the negligence of Lawrence and Capitol “concurred and joined together to destroy plaintiff’s goods.” I cannot see that the court’s statement in its opinion three months earlier that “the court will retain jurisdiction to determine the. issues of the cross-actions, if the parties therein concerned determine to pursue the same” saves the parties, inter sese, from the subsequent determination that was made in the same case in April. I would think this point was settled by our case of Ohlinger v. United States, 9 Cir., 219 F.2d 310 .

In making the foregoing argument, I am fully aware of our case of Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902 , 905 and the more recent case of Bedal v. Hallack & Howard Lumber Co., 9 Cir., 226 F.2d 526 . What I have said here, I regard as wholly consistent.

If the trial judge in the issues between Capitol and Lawrence was free to go behind his findings in the original case, then mostly what troubles me is Lawrence’s watchman, W. R. Kissell, who was on duty at the Ice Palace during the events which produced the fire. I think next to the contractor-workman who, with the aid of the acetylene torch, start *179 ed the fire which burned down the Ice Palace and burned up Defense Supplies’ tires, this watchman is the leading tort feasor shown in the record.

Here Lawrence undertook to “watch” the tires. True, the cost of watching was repaid Lawrence by Defense Supplies. But nevertheless the “watching” function was not placed in the hands of Capitol.

Now we accept it that Capitol issued the pass authorizing V. J. McGrew, a well-drilling contractor, to go to the Ice Palace and remove the tank. But the record does not indicate Capitol had any knowledge that an instrumentality like a torch, dangerous under the circumstances, was necessary to perform the job of removing the tank or would, in fact, be used.

Here Watchman Kissell for two days knew of the use of the torch. He made no effort to stop McGrew’s use of the torch. He reported the fact to no one. He says, though, that he admonished McGrew to “be cautious” of fire.

Kissell was a watchman. In the absence of any specific orders for the post, I think a watchman’s duties are to watch. 4 Isn’t it that simple? And watch for what? Watch for things that might harm what he was hired to watch. And wouldn’t the first things to watch for be possible active sources of thievery and fire?.

It is not pure conjecture to predict that the next time, if he ever meets the same set of circumstances, at the sight of the hazard Mr. Kissell will specifically advise those who control the building of the dangerous operation. Moreover, if he does not stop the torchman immediately, I can see him sending for a fire extinguisher and moving some pails of sand to the scene. As a matter of law, I would impress on him the same standard of care that he would exercise after losing the Ice Palace. He wasn’t entitled to lose one building first before being careful.

As I see it, if Capitol caused the fire (and the judgment pursuant to Defense Supplies Corp. v. Lawrence Warehouse Co., D.C., 67 F.Supp. 16 , so holds), by letting' McGrew into the Ice Palace and by not affording fire fighting facilities, surely the watchman who did next to nothing about the obvious peril is not less than a concurring cause. And among those who are concurrently negligent in California there is no contribution or indemnity. Adams v. White Bus Line, 184 Cal. 710 , 195 P. 389 .

Here Capitol is held because it did not find out that McGrew would use a torch, because while McGrew was using the torch Capitol did not stop him (even though it didn’t know) or perhaps because Capitol did not surround him with fire extinguishers. Yet Lawrence’s watchman, Kissell, who, after the pass for Mc-Grew to enter the premises was issued, saw and observed the danger and did nothing but to give him friendly advice to “be cautious.”

But there is the question: Should Lawrence be charged with Kissell’s negligence? Lawrence hired the “watching” from an independent contractor, the Burns Agency. Kissell was an employee of Bums. In considering this question, perhaps we should first examine the duty which Lawrence owed to Defense Supplies. Lawrence was the warehouseman. The statutes of California, now California Civil Code Sec. 1858.30 (which is Section 21 of Uniform Warehouse Receipts Act), imposed a duty of reasonable care upon the warehouseman. The contract between Lawrence and Defense Supplies did not add to or detract from the statutory duty.

I take it the primary undertakings of Lawrence with Defense Supplies were to (1) keep the tires in a warehouse and (2) watch them. Lawrence hired Capitol to do the first and Burns to do the second. Inasmuch as watching the tires was one of Lawrence’s obligations, I think that it stands in the same position as if Kissell had been on the Lawrence *180 payroll. If the duty is owed by Lawrence to one such as Defense Supplies, I don’t think the ordinary limiting rule about a contractor’s not being responsible for a sub-contractor’s negligence 5 and the rule that there is only a duty not to select a man generally known to be careless apply. See Brown v. George Pepperdine Foundation, 23 Cal.2d 256 , 143 P.2d 929 ; Robbins v. Hercules Gasoline Co., 80 Cal.App. 271 , 251 P. 697 ; Miles v. A. Arena & Co., 23 Cal.App.2d 680 , 73 P.2d 1260 ; Sawaya v. De Cou, 60 Cal.App.2d 146 , 140 P.2d 98 ; Colgrove v. Smith, 102 Cal. 220 , 36 P. 411 , 27 L.R.A. 590 ; City of Long Beach v. American President Lines, 9 Cir., 223 F.2d 853 .

It can be said that I produce no fire case where a sub-contractor’s watchman was involved. That is true. But I think that the cases in the law where one is not held for his sub-contractor’s negligence all distill in the end to. be cases where the contractor in the situation had no duty to the injured party in the field where the injury occurred.

As pointed out in the trial court's opinion, Lawrence as a warehouseman by the California Warehouse Receipts Act, Sec. 21, supra, was under a duty to preserve the tires of Defense Supplies Corporation. This is pointed out in the opinion below, D.C., 67 F.Supp. 16 at 20 . If Defense Supplies had hired the watchman and he had been its watchman (not a case of Lawrence hiring him at Defense Supplies suggestion and agreeing to reimburse the cost) then I would agree with the majority about Mr. Kissell.

Let’s make another approach. The majority holds that Lawrence was liable because Capitol, its agent, was negligent. The Burns Agency and its man Kissell had exactly the same relation to Lawrence as did Capitol. The latter was “keeping,” the former, “watching.” The majority says Lawrence was liable to Defense Supplies only because of the negligence of Capitol. Then I say Burns, in the same relationship, was negligent. That must be imputed to Lawrence. Why should Lawrence, caught by its liability for Capitol’s negligence, be able to shift to Capitol the same liability Lawrence also has for Kissell’s negligence? If we had. Lawrence versus Kissell before us, I would impute Capitol’s negligence to Lawrence. All of this would result in leaving Lawrence and Capitol where Reconstruction Finance Corporation’s judgment left them — liable as joint tort fea-sors without rights of indemnity as to each other.

Here we have a case where one agent, Capitol, didn’t prevent McGrew from carrying on a dangerous operation in a dangerous place. If that is correct, then it must be clearly erroneous to find that Lawrence is not to be charged with the conduct of the watchman who saw and observed the danger (for which Capitol in its ignorance was charged) and did nothing about it except say, “Be cautious.” A standard of care should not shift so fast.

The concurring opinion partially justifies the result reached by the majority on the ground that the rule of “no contribution or indemnity between joint tort feasors” is really an equitable clean hands doctrine: that it should not be used when reason ceases.

Believing as I do that Lawrence was substantially (as a matter of law) to blame, I do not think that we reach the plane of “clean hands.” But if we do reach that plane, I think we are getting out-in front and ahead of the California cases if we introduce “clean hands” into the issues between these joint tort feas-ors.

It seems to me that if contribution were the law of California, this would be a splendid case for it. But it is not the law of California on joint tort feasors whose concurrent negligence contributed to and caused the damage. In this case, I adhere to the view that a California *181 court would leave where it found him, the man who was most scared of the marshal’s prospective writ and paid the judgment.

If the majority is right that Lawrence should be indemnified by Capitol, then I state that I concur with the majority as to the liability which it affirms as to James A. Kenyon, Adams Service Co., F. Norman Phelps and Alice Phelps.

. In findings No. V and VI in case No. 23,171, the court said:

Upon the foregoing findings the liability originally was fastened on Capitol and Lawrence.

. On their appeal in case 23,171 (which was No. 11,418 herein, which resulted in our opinion in 164 F.2d 773 ), Lawrence and Capitol had an argument with much merit that any negligence of theirs was not concurrent with that of MeGrew, the man with the acetylene torch who was found by the trial court to have started the fire. But the trial court’s judgment in 23,171 standing against Capitol and Lawrence as a consequence of the lapse of the corporate life of Defense Supplies Corporation which was held by the Supreme Court to abate the first appeal, 336 U.S. 63 , 69 S.Ct. 762 , we have to accept the fact that there was a liability of both Lawrence and Capitol to Defense Supplies and later the Reconstruction Finance Corporation when the latter sued on Defense Supplies’ judgment and against which Capitol and Lawrence could not defend under the Supreme Court decision. Also there is much difficulty with the first judgment (which difficulty is now pure theory) in discovering any evidence that Capitol ever consented to Mc-Crew’s entering the Ice Palace. But I think the finality of the judgment in 23,171 prevents any further inquiry into the question of Capitol’s consenting to McGrew’s entry into the warehouse. It must now be taken that Capitol did “pass” MeGrew into the premises. On the other hand, I cannot believe that we are now obligated to accept the trial judge’s cursory remark in a footnote to his opinion of January 9, 1946, 67 F.Supp. 16 , at page 21, where he says:

The statement that the guard was purely a protective activity to prevent pilferage (implying nothing more) has no support in the evidence, and such a conclusion was not carried into the findings.

. Emphasis supplied.

. See Wenzel v. Commercial Insurance Co., 67 Cal. 438 , 7 P. 817 .

. The great body of law exculpating a contractor from his sub-contractor’s negligence has been built up in the cases where no duty of care was directly owed to the injured party by the contractor. See Restatement of Agency, Section 214, and comments thereunder.