the

9 Himely v. Rose, 5 Cranch, 313, 3 L. ed. 111; Roberts v. Cooper, 19 How. 373, 15 L. ed. 687; Johnson v. Jones, 1 Black, 209, 17 L. ed. 117; Thompson v. Maxwell, 168 U. S. 451; Re Louisville, 231 U. S. 639; Mathews v. Columbia Nat. Bank, C. C. A., 100 Fed. 393; Thatcher v. Gottlieb, C. C. A., 51 Fed. 373; Florida Cent. & P. R. Co. v. Cutting, C. C. A., 68 Fed. 586; Oregon R. R. & Nav. Co. v. Balfour, C. C. A., 10 Fed. 295; Patton v. Texas & P. Ry. Co., C. C. A., 95 Fed. 244; Standard Sewing Mach. Co. v. Leslie, C. C. A., 118 Fed. 557; The Fayer-weather Will Cases, 118 Fed. 943; Gilbert v. American Surety Co., C. C. A., 61 L.R.A. 253, 121 Fed. 499; Montgomery County v. Cochran, C. C. A., 126 Fed. 456; Empire State-Idaho Mining & Developing Co. v. Hanley, C. C. A., 136 Fed. 99; Smith v. Day, 136 Fed. 964; Mutual Reserve Fund Life Ass'n v. Ferrenbach, C. C. A., 7 L.R.A. (N.S.) 1163, 144 Fed. 342; Cramer v. Singer Mfg. Co., C. C. A., 147 Fed. 917; Burns v. Cooper, C. C. A., 153 Fed. 148; Re Waterloo Organ Co., C. C. A., 154 Fed. 657; Anderson v. Messenger, C. C. A., 158 Fed. 250; Toledo, St. L. & W. R. Co. v. Reardon, C. C. A., 159 Fed. 366; Good v. Central Coal & Coke Co., C. C. A., 170 Fed. 416; Development Co. v. King, C. C. A., 170 Fed. 923; Great Northern Ry. Co. v. Western Union Tel. Co., C. C. A., 174 Fed. 321; Nat. Surety Co. v. Kansas City Hydraulic Press Brick Co., C. C. A., 182 Fed. 54; Columbia Chemical Co. v. Duff, C. C. A., 184 Fed. 876, the construction of a written

contract; Toledo, St. L. & W. R. Co. v. Sellers, C. C. A., 184 Fed. 885; St. Louis & S. F. R. Co. v. Cundieff, C. C. A., 184 Fed. 891; Baldwin v. Chicago, R. I. & P. Ry. Co., C. C. A., 192 Fed. 554; U. S. v. Axman, C. C. A., 193 Fed. 644; St. Louis & S. F. R. Co. v. Herr, C. C. A., 193 Fed. 950; Simon v. Southern Ry. Co., C. C. A., 195 Fed. 56, where the Circuit Court of Appeals held itself bound by the former decision of the Supreme Court as to the jurisdiction, Town of Fletcher v. Hickman, C. C. A., 208 Fed. 118; D'Arcy V. Jackson Cushion Spring Co., C. C. A., 212 Fed. 889; Bell v. Arledge, 219 Fed. 675; Chesapeake & O. Ry. Co. v. McKell, C. C. A., 221 Fed. 934; Woodruff v. Yazoo Co., C. C. A., 222 Fed. 29; McClelland v. Rose, C. C. A., 222 Fed. 67; National Bank of Commerce v. U. S., C. C. A., 224 Fed. 679; Coal & Iron Ry. Co. v. Reherd, C. C. A., 226 Fed. 441; U. S. v. Ash Sheep Co., 229 Fed. 479; Caledonian Ins. Co. v. Levy, C. C. A., 233 Fed. 92; Ferrell v. Prame, C. C. A., 236 Fed. 727; U. S. Fidelity & Guaranty Co. v. Eichel, C. C. A., 241 Fed. 357; Linkous v. Virginian Ry. Co., C. C. A., 242 Fed. 916; Tillar v. Cole Motor Car Co., C. C. A., 246 Fed. 831; Sun Co. v. Vinton Petroleum Co., C. C. A., 248 Fed. 623; Ash Sheep Co. v. U. S., C. C. A., 250 Fed. 591; Lesamis v. Greenberg, C. C. A., 250 Fed. 848; U. S. Press Ass'n v. Nat'l Newspaper Ass'n, C. C. A., 254 Fed. 284; City of Omaha v. Omaha Electric Light & Power Co., C. C. A., 255

Fed. 801; United Mine Workers of America v. Coronado Coal Co., C. C. A., 258 Fed. 829; Gooch v. Buford, C. C. A., 262 Fed. 894; Whitfield v. Hanges, C. C. A., 266 Fed. 69. In Simons v. Cromwell, C. C. A., 2nd Ct. Jan'y 18, 1922 in which the author was counsel upon a former appeal the same court had reversed the dismissal of a complaint and ordered a new trial. The second trial resulted in a verdict in favor of the plaintiff for $53,898.84; Judge Rogers said "The majority of the court, as constituted at the present hearing, are convinced that the conclusion reached on the first hearing was erroneous, and one of the majority dissented at that time and the other of the two was not then a member of the court. The majority of the court as constituted at the former hearing took an exactly opposite view, one of that majority still sitting and adhering to the conclusion he then reached while the other has since retired from the court. This change of personnel in the court although it changed the minority view of the former hearing into the majority view at this hearing does not in itself warrant the court in disregarding the law of the case' as it was determined by the court when the case was here before. So far as this court's relation to the case is concerned we recognize the rule that the former decision under well established law laid down in a multitude of cases extending over a long period of years settled the question as between these immediate parties to this litigation. Res judicata inter partes jus facit. The rule is undoubtedly based on sound considerations of public policy

which we would not be justified in disregarding. In Johnson v. Cadillac Motor Car Company, 261 Fed. 878, this court declined to be bound by the decision rendered by the court when the same case was here on a former occasion and we reversed the judgment obtained at the second trial which involved only a fifth of the amount which is here involved. We have no desire to discredit in the least the decision then made or to depart from the principle then laid down. That principle was that under exceptional circumstances where a former decision in the same case is clearly erroneous and announces a wrong rule and one mischievous in its practical operations of which might readily affect many persons adversely the court should reverse its earlier decision. It is not probable and certainly cannot be foreseen that exactly such a state of the evidence, as in the case now before us, will be presented again in some subsequent litigation. After the first decision in Johnson v. Cadillac Motor Car Co., it transpired that the New York Court of Appeals decided MacPherson V. Buick Motor Co., 217 N. Y. 382, which established the law of the State in a manner contrary to the rule first announced. While we arrived at our conclusion quite independently of that decision which was not controlling upon this court the attitude of the New York court was of great importance. And in the case at bar since the earlier decision, there has been no decision of the Supreme Court of the United States or of the New York Court of Appeals having any bearing upon the question before us. The Johnson v. Cadillac Motor Car Co.

case is clearly exceptional, and is easily distinguishable from the case now before the court. In the instant case when it was here before no rule or principle of law was laid down which can affect adversely other persons than those before the court, the only question being as to whether the particular evidence produced at the trial justified the submission of the case to the jury. So when the cause is taken to the Supreme Court upon new constitutional questions raised after the return of a mandate from the Circuit Court of Appeals; Shapiro v. U. S., 235 U. S. 412; and it has been held, where new questions are suggested, which might have been, but were not brought to the attention of the court upon the former appeal. Ibid.; Sun Co. v. Vinton Petroleum Co., C. C. A., 248 Fed 623; Iowa Cent. Ry. Co. v. Walker, C. C. A., 255 Fed. 648. Contra Ex parte Union Steamboat Co., 178 U. S. 317, 44 L. ed. 1084; Balch v. Haas, C. C. A., 73 Fed. 974; Chase v. U. S., C. C. A., 261 Fed. 833 (as regards a statute not previously brought to the attention of the court of review); Alexander v. Fidelity Trust Co., 255 Fed. 690. But not when questions were left open by the former opinion, F. M. Davies & Co. v. Porter, C. C. A., 248 Fed. 397. Where the decision is based upon two grounds, either of which is sufficient to sustain it, neither is obiter. Union Pac. R. R. Co. v. Mason City R. R. Co., 222 U. S. 237, 56 L. ed. 180; Ontario Land Co. v. Wilfong, 223 U. S. 543, 56 L. ed. 544; Florida Central R. R. Co. v. Schutte, 103 U. S. 118, 26 L. ed. 327. This is not true of all the dicta in the opinion. Barney

v. Winona & St. P. R. Co., 117 U. S. 228, 29 L. ed. 858; The E. A. Packer, C. C. A., 58 Fed. 251; Gleason v. Thaw, C. C.. A., 234 Fed. 570. The same doctrine applies when an application for the writ of prohibition or mandamus in connection with the same case was previously before the court of review and the merits were then considered. Griggs v. Nadeau, C. C. A., 25 Fed. 781. A per curiam affirmance with no opinion means only that the decree on the facts proved in the record is correct. John Deere Plow Co. v. Anderson, C. C. A., 174 Fed. 815. A denial by the Supreme Court of a writ of certiorari is not equivalent to an affirmance. Anderson v. Moyer, 193 Fed. 499. When a new trial is directed, the rule is confined to questions actually discussed and decided by the opinion, E. E. Taenzer & Co. v. Chicago, R. I. & P. Ry. Co., C. C. A., 191 Fed. 543. Where the Circuit Court of Appeals upon a writ of error, taken by the defendant, affirmed a judgment in favor of the plaintiff, and subsequently upon a cross-writ sued out by the plaintiff, reversed the same upon different questions and ordered a new trial; it was held that, although the effect of the latter decision was to reverse the former, the opinions filed upon the two hearings, which had not been withdrawn, constituted the law of the case; and that the questions therein determined would not be reconsidered upon a writ of error from a second judgment. Montana Min. Co. v. St. Louis Min. & Mill. Co., C. C. A., 147 Fed. 897. Upon the second appeal the court of review may determine whether its mandate was

11

or in case

misconstrued by the court below. Continental & Commercial Tr. & Sav. Bank v. North Platte Valley Irr. Co., C. C. A., 237 Fed. 188. In construing its own mandate a court may take into consideration the knowledge of its members as to what they thereby intended; Steinfeld v. Zeckendorf, 239 U. S. 26. Citing Hengham as to the statute as of Westm. II "Ne Glosez point le Statut; nous le savoms meuz de vous, car nous les feimes." Y. B. 33 Ed. I. Mich., Rolls Ed., 83.

10 Empire State-Idaho Mining & Developing Co. v. Henley, C. C. A., 136 Fed. 99; Gloucester Water Supply Co. v. Freeman, 211 Fed. 349; F. M. Davies & Co. v. Porter, C. C. A., 248 Fed. 397; and authorities cited in preceding note. When the mandate directs further proceedings in accordance with the opinion of the court, such opinion is in effect therein incorporated. Metropolitan Water Co. V. Kaw Valley Drainage District, 223 U. S. 519, 56 L. ed. 533.

11 Utah Power & Light Co. v. U. S., C. C. A., 242 Fed. 924. It was formerly held that an intermediate Court of Appeals, upon a second appeal, should not follow

the intervening decision of a higher court between different parties inconsistent with the former rulings. District of Columbia v. Brewer, Court of Appeals D. C. January 5, 1909, 37 Wash. L. Rep. 65. See Ogle v. Turpin, 8 Ill. App. 453, Harv. Law Rev., xxii, 438. But see Hastings v. Foxworthy, 45 Neb. 676, 34 L.R.A. 321; Smith v. Neufeld, 61 Neb. 699.

12 Messenger v. Anderson, 225 U. S. 436, 56 L. ed. 1152, reversing C. C. A., 171 Fed. 785; Johnson v. Cadillac Motor Car Co., C. C. A., 261 Fed. 878.

13 Johnson v. Cadillac Motor Car Co., C. C. A., 261 Fed. 878.

14 Brown v. Lanyon Zine Co., C. C. A., 179 Fed. 309; Moss v. Ramey, 239 U. S. 538; Wolf Bros, & Co. v. Hamilton-Brown Shoe Co., C. C. A., 206 Fed. 611; Kalamazoo LooseLeaf Binder Co. v. Proudfit LooseLeaf Co., C. C. A., 243 Fed. 895. 15 Racine Engine & Machinery Co. v. Confectioners' Machinery & Mfg. Co., C. C. A., 234 Fed. 876.

16 Zeckendorf v. Steinfeld, 225 U. S. 445, 56 L. ed. 1156; Buster v. Wright, C. C. A., 135 Fed. 947. 17 Metropolitan Water Co. V.

Kaw Valley Drainage District, 223 U. S. 519, 56 L. ed. 533.

18 Brown v. Alton Water Co., 222 U. S. 325, 56 L. ed. 221.

19 Ex parte Harlan, 180 Fed. 119. 20 Alaska-Treadwell Gold Min. Co. v. Cheney, C. C. A., 162 Fed. 593; Crotty v. Chicago Great Western Ry. Co., C. C. A., 169 Fed. 593; Beiseker v. Moore, C. C. A., 174 Fed. 368; Williams v. Am. Ass'n, C. C. A., 197 Fed. 500; Patterson v. Stroecker, C. C. A., 245 Fed. 732; Board of Com 'rs of Muddy Bottom Swamp Land Dist. No. 1 v. Equitable Surety Co., C. C. A., 246 Fed. 633; Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co., C. C. A., 252 Fed. 487; U. S. v. Murphy, 253 Fed. 404; Iowa Cent. Ry. Co. v. Walker, C. C. A., 255 Fed. 648. An order for a new trial, because of an error in refusing a motion to direct a verdict in favor of the defendant, does not entitle him to such a direction upon a second trial, when the evidence is substantially different. Denver & R. G. R. Co. v. Arrighi, C. C. A., 141 Fed. 67. Where the evidence is substantially the same, a verdict should be directed, if the court of error has held that this should have been done before. Cramer v. Singer Mfg. Co., C. C. A., 147 Fed. 917; United Press Ass'ns V. National News

papers Ass'n, C. C. A., 254 Fed. 284. Where a judgment upon a directed verdict was reversed, because the question of fact should have been submitted to the jury, it was held that the trial court could not set aside a verdict for the same party, found by the jury, upon a subsequent trial, on substantially the same evidence. Philadelphia v. Atlantic & P. Tel. Co., 127 Fed. 370. See Toledo, St. L. & W. R. Co. v. Reardon, C. C. A., 159 Fed. 366. Additional facts which only tend to strengthen the inferences that might have been drawn from the facts presented at the first trial do not warrant the trial court in declining to follow the opinion of the court of review. Connelley v. Pennsylvania R. Co., 221 Fed. 508, an action for damages for negligence; Woodruff v. Yazoo & M. V. R. Co., C. C. A., 222 Fed. 29. Where the mandate directed a new hearing "on the evidence submitted and such additional testimony as may be offered," the previous evidence is entitled to no greater weight than that taken after the mandate. Westinghouse Electric & Mfg. Co. v. Wagner Electric Mfg. Co., 233 Fed. 752, reversing 218 Fed. 646. Where an appeal from an order granting or denying an interlocutory injunction has been decided, the