McKenney

Buffelen Manufacturing Company is a California corporation. It manufactures at Tacoma, Washington, doors for which “shop lumber” is required and other products for which the lumber from “peeler logs” is needed. It will be herein referred to as Buffelen or as the milling company. Buffelen was the plaintiff in the district court in this diversity case. It is appellee here.

Operating in the timber of Tillamook County, Oregon, during the years 1948 to 1951 and perhaps many years before was a logging partnership known as Mc-Kenney Logging Company. It consisted of Bart McKenney and Einar Glaser together with their respective wives, Marie McKenney and Dorothy Glaser. They will be hereinafter referred to as McKenney & Glaser or as the logging partnership. The McKenneys and Glasers are citizens of Oregon and were among the the defendants in the trial court. The other defendants were Edward M. Buol and J. B. Carr and a Washington corporation called McKenney Logging Corporation. In 1951, Buol, a citizen of Washington, and Carr, a citizen of Oregon, organized and controlled McKenney Logging Corporation. McKenney and Glaser apparently were never stockholders, officers or directors of this…

(concurring in part and dissenting in part).

I am in accord with the reasoning in Judge Chambers’ opinion by which he arrives at the conclusion that since the Buffelen Company did not actually lose the $50,000 which was added to the judgment against the McKenneys and the Glasers, the judgment against them must be reduced by that amount and limited to the award based on loss of profits. The opinion adequately discloses that the $50,000 trespass or stumpage loss was purely illusory.

I am also in accord with what is there stated about the rule of damages that should be applied in determining how much may be recovered for the torts found to have been committd by what is referred to as the Buol-Carr Corporation. 1 approve his conclusion that this is an occasion for application of the rule of § 903 Restatement of Torts to the effect that the normal recovery for tort is limited to those damages which will compensate the plaintiff for his actual pecuniary loss, and that the award should be designed to place him in a position “substantially equivalent in a pecuniary way to that which he would occupy had no tort been committed.” I agree that “the Oregon courts in tort cases would follow…

On Petition for Rehearing

Appellants McKenney in their petition for rehearing make two points. The first concerns the damages awarded in the case. The second raises objection to the form of the injunctive relief granted Buffelen in the trial court’s judgment. The restraining portion of the judgment reads as follows:

*13 The attack now made (and for the first time) is that the form is too general and it refers to a document outside the corners of the judgment. Therefore, the injunctive commands do not meet the requirements of Rule 65(d) of the Federal Rules of Procedure, 28 U.S.C.A.

The generality of the injunctive commands did not deprive the trial court of jurisdiction.

This vice of generality was not mentioned in the trial court when the McKenneys made a motion to amend the judgment. No complaint was made here of this generality when the McKenneys made their specification of errors.

The mandate will go down authorizing, but not directing, the trial court to amend the injunctive provisions of the judgment to comply with Rule 65(d), if in its discretion it now finds such a gourse advisable.

Otherwise, the petition of appellants McKenney is denied.