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LOWE v. UNITED STATES SMELTING, REFINING & MINING CO.

No. 11953.

176 F.2d 813 (1949)

Emma Grace LOWE, Appellant, v. UNITED STATES SMELTING, REFINING & MINING COMPANY, a Corporation, et al., Appellees.

United States Court of Appeals Ninth Circuit.

September 22, 1949.

Attorney(s) appearing for the Case

Harold Banta, Hallock, Donald, Banta & Silven, Baker, Or., for appellant.

Southall R. Pfund, San Francisco, Cal., Charles J. Clasby, Fairbanks, Alaska (Pillsbury, Madison & Sutro, Allan R. Moltzen, San Francisco, Cal., of counsel), for appellees.

Before HEALY, BONE and POPE, Circuit Judges.

PER CURIAM.

The petition for rehearing is denied.

POPE, Circuit Judge (dissenting).

I dissent from the order denying the petition for rehearing for the reason that in my opinion our judgment should be amended so as to remand the cause for a new trial to permit appellee to offer evidence of the performance of annual labor upon its claims.

It is true that when the case was tried, appellee proceeded upon the theory that such proof was not required...

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