167 F.2d 998 | 9th Cir. | 1948
Appellant urges that this court erred (1) as to the facts regarding the premium base, and (2) in failing to hold appellant entitled to interest under the doctrine of res judicata.
Apparently the facts concerning which we allegedly erred are comprised in the testimony of the Government engineer that he had no way of determining exactly the payroll amounts in question. This fact we recognized in our opinion. From this fact appellant concludes that it was established that remuneration of the insured’s employees were “not available to the company” (insurer), hence that the policy dictated application of the 50% of contract cost provision. We do not agree. Testimony of the Government’s witness at the rehearing that he could not then accurately break down certain of the payroll figures was not the equivalent of nor a substitute for appellant’s establishing that the remuneration was “not available” to the insurer within the meaning of the policy. Appellant’s argument in attempting to give effect to one provision of the policy, completely ignores the other provision limiting the policy coverage to a certain defined part of the Alaska highway. As we have heretofore observed, appellant’s formula for arriving at the premium base is contrary to, whereas the formula used by the trial court is in accord with, the law of this case established on the first appeal.
Appellant’s second contention is bottomed upon the indisputable principle that res judicata applies not only to matters presented and decided in a prior action, but also to matters which might properly have been therein presented and decided. The argument in this regard postulates that on the first appeal of this case we affirmed, at least in part, the judgment of the lower court, and merely remanded for the taking of evidence on specified issues. On the first appeal we unconditionally reversed the trial court’s judgment and remanded the cause for disposition in accordance with the views which we expressed. Our implied approval of the $90,053.81 amount as part of the premium base did not, as appellant assumes,
The petition for rehearing is denied.