ALBRIGHT 17. M'TIGHB.
817
the obeyIng of such Instruction was opposed to common prodence, so 8S to make it an obvious act of recklessness or folly. "
It is contended that the giving of these requests was error. We have no doubt of the propriety of the first instruction. The defendant in er· ror was certainly not guilty of contributory negligence in the track pursuant to the direction of a person who was connected with the management of the train, and presumptively knew whether it was about to mov.e,unless he was himself aware of some danger, such as would have deterred a man of ordinary prudence from going forward in obe:. dience totbe signal. The plaintiffs in error requested the court to charge the jury in substantially the same language. If the word "recklessness," found in the last clause of the second instruction, was employed, as it frequently is, merely as a synonym for" carelessness" or "negligence," no fault can well be found with the second direction. That it was intended to be admits, we think, of no doubt. Both directions arepredicated on the same hypothesis,-tbat the plaintiff had been directed to proceed over the crossing; and it will not be presumed that the court intended'to prescribe a different rule of law applicable to the same. state of It is also quite clear from other parts of tbe charge that the was used as a synonym for "carelessness." On, at word least, fOJlrdi1ferent occasions in tbe course of the charge, the form of was changed, ev.idently without any intent to vary the rule of law applicable to the issue of contributory negligence. Taken as a whole, therefore, we think the jury must have understood the charge as stating the following proposition: That if the plaintiff had been directed by the conductor or brakeman to cross the track, contrary to his previous intention, and in so doing he had sustained injury, then he was to recover, unless in attempting to cross he had assumed a risk of getting caught between the two sections of the train, which was known to .him at the time, and was such a risk as a prudent man obvi. ously. would not have taken. A careful consideration of the record satlsfies us that this was a correct statement of th- law applicable to the testimony; and we accordingly affirm the judgment
ALBRIGHT 17. MoTIGHE (Ofn'cuit OOUrt, W. D. Tennessee.
et ale
February 111, 1899.)
L
TORT-F'EUORs-JOINT AND SEVERAL LIABILITY.
In· an action for malicious prosecution against several defendants, a recovery may be hlW against one or more or all, as their liability is joint and several, and plaintiff J:l!.ight have brought separate actions, though he could have but a single satisfaction, except as to costs.
I. 'SUrE-NEW TRIAL-MOTION FOR BY ONE DEFENDANT. !nsuchan ,action, where plaintiff has obtained a general verdict against all the defendants, who subsequently move for a new trial, the court bas the undoubted power, upon a proper case made, to grant the motion for new trial as to one oftheJ» and overrule it as to the others.
vA9F.no.10-52
818 a' '.it;lIL' ';". 3J Plainti1f sned three defendants all partners in an action formaliotoull prosecution: represented by the same counsel, pleaded jointly, llond verdict for $7,500 'was rendered againflttliem all, and they jomtly moved for ,& !new triaL .Subse-, q\ientlyB., one of them, Elmployed nElwcoullsel. and renewed the. motion onl;1isown ",' sUPPQrted b, hi.li affidavit that he was not a. parttier 'With the others at the time or the WI'ongsoompiained of knew'Dothing of luch Wl"Onga .exoept fromnewll!' . paper report, and did not,know of the luit'against himaeUtherefor until after verelict, did not attend the trial. ,HeMi that, though hillnegligenoe might techDic/LU'1. 'n.o.t be summen.tgron for the m.o.tion, yet, hi the discretion of the c.our.t,. it .. ..nd, OUght to be granted, the ciroumstances, to enable him to make this defense, which was not made at the trial; alid that the others should be given a new trial because the several liability of detelldants 88 wrong-doeta W88 not considered 'at case before thia motion, apd. non constat that' the jury, upon. full discuslion and consideration ot this question, would have given t.he same verdict against two dllfolidanta 88 Wal rendered against all, or would have found \he 88lDe dalD" againSt B. against , 1
At
JurM.8', M. Greer and J. S. Duval,for plaintiff. McPtiW(j,U & Morgaii&! McFarland, for, defendants. Turley 'etWright, for Sullivan. "
Ulw.
Motion for new trial.
District Judge. This is an action of tort, brought by thi;, "thedefendants, J. S. McTighe, ..!. L. McKee, and T. Sulliv'an, doing business the firm name of J; S. McTighe & Company; II the declaration containing 'two counts,-ooe for malicious prosecution plaintiffupon a criminal charge, the other for false imprisonDlent. Four pleas were filed-First, not guilty, by "the defendants J. and T. Sullivan; II 8econd, a like plea by "the defendants J. McTighe & COj" third, a similar plea by "the defendant I. L. McKee;" and, fourth, "the defendants" plead not guilty, and say the imprisonment declared" was in till respects lawful, and was not false'or .Upon thef:le issues a trial was had, resulting in a verdict and judgfuent for plaintiff"against the said defendant$, J. S. MoTighe, 1. L. and T. Sullivan, doing business under the firm name 'of J. S. Mc11,gbe & Company," for 87,500, and "the defEmdantll" moved. for a new-trial. Subsequently the defendant T. -Sullivan ."asksthat a new trial may be awarded as far as he is concerned," and davit to the effect that the said firm of J. S. McTighe & Co. was not a general partnership, but was formed for the specific purpose of carrying out two contracts, and was only intended to last during the execution of the work covered by them; that both contracts were completed nearly a year before the acts complained of in the declaration, when the special partnership terminated by limitation; and that a full and final settlement of all the affairs of the said partnershipwas'blld by the said partners some nine months before the time of the.transactions for which suit is here brought. No cQunter-affidavits have been filed to that of'Sulli. :'vap, but ita.ppearedinpro(>fonthe trial oftbis case that he was a witness for the state in the 'prosecution against the plaintiff here, ",hich the declaration wasmalioioufi!. This defendant certainly now makes a strong showing fora new trial as to himself, and especially so when ·oonsideredin viewoffhe weakness of the testimony produced against him before the jury. If the fact be that at the time of the plaintiff's ar-
ALBRIG.HT II. H'TIGIQ!I.
819
J;eBt he was not a member of the firm, that he knew nothing of that arrest except what he saw in the newspapers, and took no part in it or the prosecution of the indictment except as a witness, it may be that the jWY would have found altogether in hi& favor, or have mitigated the against him, if only technically liable. The difficulty, however, is thatthis defense he now makes was not pleaded by him to the declaration, nor attempted to be established by testimony on the trial. His excuse (or not having made this defense is that be did not know tbat he was sned, nor that he was interested in the case on trial, nor that a judgment. had been rendered against bim, until he saw an account of this trial in the newspapers, when he consulted his present counsel. AIthough he was served with process, it may bl;! true that he did not appreciate the.effect of it upon him; and, as his counsel argues. he supposed he was not involved, butpnly the firm as it stood when the plaintitf was arrested·. Certainly no separate defense.was made for him by counsel for tbe firm, and neither in the pleadings nor the trial nor the argument, except that it was argued that there was no proof RF;ainst him, was any him and the other defendants. Undoubtedly distinction made it is too late. after judgment for a defendant to say tbat he did not know that he was sued, or was not aware of his defense, or the like, and, technically, it is no ground lor a new trial. Yet the trial court, in exercising tbis power to grant new trials, looks over the whole field, and considers those features orthe proceeding which are sometimes hard to describe, but which nevertheless appeal strongly to the sense of justice in tbe application of technical rules like that. I noticed at the trilll that Sullivan was not present, and seemed to be taking no interest in the suit, which was of such tremendous import, under the proQf, for all who were responsible for the wronglul aUtlst and prosecution of the plllintiff. There was only slight proof against him, and his liability grew entirely, seemingly, out of the rule that his firm was responsible, as a firm, for the torts of its members in the prosecution of its business. Of course tbe court was aware of the facts now presented in his behalf; but at one time in tbe trial, when counsel so strenouslyargued for him that he had taken no part in tbe arrest or prosecution, except as a witness, and that the firm W(l.S not responsible as a firm for such torts, it occurred to me that possibly there should be a verdict for him, but finally concluding that he. was liable, however passive he may have been, knowing, as he did, of the ,prosecution, and taking no steps to stop it, not using his power or right as a partner to stop it, or at least to disaffirm ordisconneet himself with it, I made no distinction, on charging the jury I as to him, and the verdict was rendered against him 00 that theory. There{ore it WaS that no instructions were given at aU with special reference to him, ortojpint and sev,eral liability of the parties, and the case was ttied as if all were liable. ., thequesti'on first presenting itself is, of course, a new trial can legally be grantud him without awarding a new trial of the whole case, .bolh as to him and his co-defendants. It is settled. beyond that the liability of in. a suit of .thiskit;l.d is
joini and several-. All thepersoris liable,' or any' one or more of them, may be sued in the sarrie action, and a reCovery may be had against one ormoreor all the defendants in the suit, or plaintiff may, at his election, bring several actions against persons engaged in the same wrongdoing, joining them as he pleases, and may obtain several judgments for different amounts; but his acceptance of satisfaction of anyone of the judgments will operate as a satisfaction of them 'all, except as to the costs. Lovejoy Murray, 3 Wall. 1, 10, 11; Ohaffee v. U. S., 18 Wall. 516, 538; Cooley, Torts, 136. And in Tennessee, as elsewhere, the plaintiff may elect which judgment he will en:rorce. Knott v. Gunningham, 2 Sneed, 204; Chmtian v. Hoover, 6 Yerg. 505. The defendants McTighe and McKee strenuously insist that Sullivan cannotalone be granted a new trial of the issue u pan this record, as he was sued jointly with them, pleaded jointly with them, defended jointly with them at the trial, which resulted' ina joint judgment against them all, and with them jointly moved for a new trilll; and that his subsequent motion cannot avail him, without necessarily inuring to their benefit. That Sullivan should' have a neW trial, they agree,: but claim that for the error'as to him there rnustbe a n'ew trial as to them also; Before taking up that question, it maybe well enough to point out that possibly Sullivan is not to a new trial so muol} because of any error as, to any of them, bUt ohly asa matter of judicial condonation of his riegligence,if it maybe so expressed; though I suppose it must be treated rather 'as ian error in the trial that the cburt did notcnll the attention of the jury more particularly to the'fa<it that as to all joint wrong-doers some may be more flagrant in ,their wrong-doing than others, and let the jury grade the wrong in their verdict, ·if need be; and the real question is, what is the effect of this error as to one joint wrong-doer upon th{j verdict l'Emderedjointly against all ? Upon this question there is a conflict of authority, the older cases, and perhaps some modern ones, holding that one of several defendants in an action of tort cannot be awarded another trial unless all are. Bond v.Sparks, 12 Mod. 275; Parkerv. Godin, 2 Strange, 813; Doe de Dudgeon v. Martin, 13 Mees. & W. 810; and note a; 2 Tidd, Pro 911. The better doctrine is, however, otherwise, as the cases abundantly show; and while some of themendeavot to establish distinctions from the old rule, others boldly repudiate or ignoreitaltogether. In Price V. Harris, 25E. C. L. 159, 10 Bing. 331 t the action was against 17 defendnnts"for injury in the nature There was a judgment by default against Proctor £900, and a v'erdi<it for the other 16 defeQdants. The court granted the plaintiff a new trial as to Harris, upon payment of all costs except Proctor's, who Was in no to be held liable beyond the £900, and upon entering anoll8pros. as to the other 15 defendants. Braion V. BUt'rU8, 8Mo;26, Waean action for taking away: a negro girl; trial of trespass against three. resulting in a verdict infav6r of two of the defendants and against the other. Held, he could move for anew trial. In·Palmer v.Kennedy, 7 if. J. Marsh. 498, the question Was whethet' both defendants must join in 'appeal froni ajildgment rendered against them by c
ALBRIGHT. ".U.'TIGHE.
821
peace, and in resolving itia, the. negative the court uses this Janguage: "If there be two or Il1oredefendants, and judgment be rendered against· them jointly in the circ1.Jit court, one who considers himself aggrieved may move fot a new trial, and obtain it, against the will. of his co-defendant." Terpenning v. Gallup, 8 Iowa, 74, was an action of trespass quare cla'U8'/J,mjregit, with a verdict against all six defendants,. who moved for a new trial. On plaintiff's motion, the verdict was set aside' as to one defendant, and the court refused the others a new trial, saying: "The objection now is that. if the verdict was set aside as to ODe of the defendants, it should have been as to all: that it was an entirety, and that the judgment must strictly follow the verdict. We do not so understand the law. In this action the jury could have found all the defendants guilty, or all not guilty, or a part guilty .and the others not guilty. And after verdict it was perfectly competent for the court to grant a new trial to one or more of the defendants, if satisfied that they were improperly convicted, and render judgment upon the verdict as to the others." , Where defendants sued as joint tort-feasors answer separately, H. averring that he, with others not sued, committed the act, which was lawful,and that his co·defendants had no part in it, held, "it was not ,error to the prejudice of H. to overrule his motion for a new trial, while sustaining a separate motion by the other defendants to set aside the verdict as to them." Heffner v. Moyst, 40 Ohio St. 112. Hayden v. Woods, 16 Neb. 306, 20 N. W. Rep. 345, was an action oftort against husband ,and wife. Separate motions were made by th61n, and overruled'. The contention in the supreme court was that, if the verdict against the wife could not be sustained, the husband was also entitled to a new trial: "Per Curiam. If no other reason for the opposite rule could be assigned, we think one can be fou nd in the separation of their motions for new trial .and their petitions in elTor, by which they have separated and severed their rights and interests. But to our minds it is clear that the results claimed by plaintiffs in error do not necessarily follow. While it is true that the aetion is against both jointly, it by no means follows that the verdict must be ,against both or neither. ... ... '" A cause of action is stated against both the plaintiffs in error in certain counts. and the proof makes a case against one of them. but. in our opinion, not against the other. Could not the jUry have found against one and not the other, and their verdict stand? ' If so, why cannot a new trial be granted to one and not the other? '" '" '" Tortfeasors are jointly and severally liable. An action may be maintained against one or all. at the option of the injured party. Several and separate judgments may be rendered in separate actions, but the satisfaction of one satisfies all, and to this extent only may their liability be said to be joint." Citing the above cases and others, it is said in 16 Amer. & Eng. Ene. Law, p. 645, thllt this rule applies "to a motion by the defendants in tlctions against two or more tort-feasors, and a verdict may be set aside to one and a judgment rendered. against the others." HO'U8ton ·V. ' Bruner, 39 Ind. 376. Such is, believed to be the law in this state. In Smith v. Fosler,3 Cold. 147, there was a verdict and judgment against several deftmdants for $25,000 in an action of tort·. An applicatiOn by Cox, a deiendant,wll8 mJtde by petition to set.!is,ide the judgment as to "himself
822
I'EDERAL :mORTER,
vol. 49.
and the otherdefendl1nts,wbichwfls denied, and an appeal taken. The supreme court in its opinion regardsahd treats Cox's petition "as in the nature of an application for a new trial," and, in affirming the judgment as to two of these defendants and reversing as to the others, says: "In an action of this kind! where the of the parties is several, as weU 8S joint, and theplalntitf might maintain the action against anyone oralHhe, defendants. they cannot lle hpal'd to'say that because the judgment is erroneous, as to one or more of their co-defendants, it is therefore erroneous as to them." ' And even in an action by the state upon a liquor license bond, where the judgment was against all the parties to the bond who were ants, llnd new trial refused below, the court, affirming judgment as to two of them, and remanding for a new trial as to the other, says: "Tberule that a judgment is an entire thing, and therefore, it void as to one p:trty, cannut be allowed to stand as to any of the other pal'tips, is a purely technical one. A jlldgmpnt may be correct its to one, and altogether erronl'0119 liS to another joint party." Webbs v. state, 4 Cold. 199, 204; Gordon'''. PItt, Slows, Of, thecasee cited to the contrary of this rule by counsel for defendants; ,Sperry v. Dickinaon, 82 Ind.J32, was an action for the foreclosure of amorlgagej Riggs v. Hatch, 16 Fed. Rep. 839, an action upon a promissorynotej Draper v. Stllte, 1 Head, 262, a "joint" action upon a sheriff's bond; Findlay v. Hinde, 1 Pet. 241, an equity cause, in which the question was one of proper vartiesj Trousdale v. Donnell, 4 Humph. 273, an act,iohQf debt simplYj and Bank v. McClung, 9 Rumph. 98, a joint action upon a note, in which judgment was rendered against the makers and in, favor of accommodation indorsers. Duly v. Dickin8on, 5 Cold. 486, 8()much relied on, was replevin when service was had on onl)' one of two defendants. In awarding a new trial to both,the supreme court bases its jUdgment on the idea that in replevin upon a restoration of the property invoh't>d, in case plaintiff should fail in the action, "the title or right Of possession may be ,with the defendants joinllyj" the opinion using this language: "It is enough that. in a case of this kind it appears thattJte interests and rights of the defendants are so blended that it is not proper to sever them in the record." Without further citation or review of the authorities, I am well satisfied thntthe cdurt to grant Sullivan a new trial of this case, defenrlnnts; and, in view of all and overrule tj1e motio11 as to the the facts and Circumstnnces of the case, and of the defenses set forth in his llffidavitfiled in support of his motion, and in order that he may have opportunity to' make such defens8upon its merits, and that, notwithstanding tM technical 'reasons disclosed by the pleadings and record in 'thisSQit, there may,be no failure of justice, I have concluded to grant him a new trial. The impression made upon me at the argument, of his· 11Joti'on was that this course should be pursued unless pre\Tented by some rule requiring a different judgment. Such rule does not seem to exist here. This verdict' imposes upon Sullivan a penalty for a wrong which, if his affidavit be true, he did notcommit,a.t least not
AtBRIGHT
v.
M'TIGllE.
823
and. if he be liable at all, it is only becailse he was a partner in the business about which the trouble arose with those who committed it against the plaintiff. and did not, knowing the facts, disaffirm it for himself. The facts as to him were not before the jury as thElyreally existed, and, although this is technically his own fault or that of his counsel,-one or the other, or both,-it does not seem to me entirely just, that a verdict, which perhaps the jury would not have given against him to its full extent if they known aU the facts, should stand only be<lause of his negligence of his defense.. It is a very severe penalty for negligence in the conduct of a lawsuit by one who treated it so lightly that he gave it no attention, and did not ,attend the trial. This shows that he did not appreciate its importance to him or the nature of his defense. Without considering all the numerous grounds upon which the other defendants· make i their motion for a new trial of this entire case, or ruling upon the many perplexing questions presented by them, I have concluded, after much hesitation, to grant a new trial as to all of the defendants. The question of the joint and several liability of these defendants as tort-feasors was not much discussed before the jury. if at all. Proof was admitted showing the solvency of the firm of McTighe &; Co., and its ability to answer any probable verdict that might be found against the firm. It by no means follows that this or another jury would compute the same damages against two of the defendants as against all three of them, and while, perhaps, in strict law, this would not be a sufficient technical ground fora new trial in an action of tort like this, where the defendants are jointly and severally liable to the plaintiff for such damages 8S he may recover, yet, exerCising -'that discretion which all courts possess in the matter of new trials, and to enable the defendants to more fully present this view of the case to the consideration of aMther jury, I am constrained to direct a new trial of this case, solely because I feel that it may be unjust to McTighe and McKee, whatever wrong they may have. committed against the plaintiff, however enormous the outrage upon him may have been, and however justly they may deserve this verdict, to assume that the jury, with aU the facts before them as to Sullivan, and excusing or mitigating the wrong as to him, would have given the same verdict as to them. There were three partners sued,and all were supposed to be equally guilty and equally liable. From the beginning to the end, no distinctions were made. between them, and the verdict was given on this basis. However technically we may have the power (and I do not doubt it) to enforce against two a verdict which was given against three, it seemB to me it would be yielding too muoh to a sense of justice to an outraged plaintiff, and in some sense would be assuming the power and authority of the jury in affixing the damages, for the court to diseharge one of three, and hold only the two, when the jury had not had their attention called to the matter in any .way. To invoke the rule of the separate liability of each and everyone of several joint tort-feasors for the very first time in the trial of a ease upon the motion for a new trial, and to enforce it bya
824
FEDERAL REPORTE:R,
ruling that one maybe discharged after verdict against all, and the oth. ers held, may be lawful enough under some circumstances; but a court acting impartially towards all parties must feel a Sense of its injustice when it appears that neither in the declaration, the pleas, the arguments of counsel, nor the charge of the court were the jury invited to give their consideration to that subject, and that they rendered a verdict ing, as they might do, that all were to share its burdens, if all were able to do it. It is too much like a verdict by the court than one by the jury to take advant!lge of these technicalities by refusing two of the defendants a new trial which is given to the other. Another jury will vindicate the plaintiffJust as surely as this has done,· if the facts and the law entitle him to the vindication he has received at the hands of this jury, whose enforcement of the right of exemption from wrongful arrest and imprisonment is in every way to be commended, and whose verdict is set aside most reluctantly for no fault of theirs. But the court will be better satisfied that such vindication comes from the verdict of a jury,' with full knowledge of all the facts, than from 11 ruling of the court, however technically correct, that imposes. upon two a liability the jury intended that three should bear. New'trial granted.
In re WILMERDnqG et .al. (Oircull Coun. 8. D. New York. March 9,1899.) OUSTOM DtJTIBB-TARIllT ACT OJ' OCTOBER I, 1890-CBABH OR C A N V A S . '
.
OJoash oroanvae, 15 and 17 Inches in width, respectively, made of flax tow, and of from 1 to:3 per cent. of cotton, and conJ;alning less than 100 threads to the square inch,oounting both warp and filling, is not dutiable at 40 per cent; ad vaZorem; as manUfactures of other vegetable fiber except flax, or of which other vegetable fiber except:llli'Xls ·the oomponentmaterial of chief value. under the provision for such manufactures contained in paragraph 874 of the tarifr act of October I, 1890, (chapterl244-,'26U.. S. Sr.. p.1i67.)
At by importers from decision of the board of United States·general appraisers. During the year 1891 the firm of Wilmerding & Bisset imported from a foreign country into the United States at the port of New York certain merchandise, consisting of crash or canvas. This merchandise, having been returned by the local appraiser as manu1actures of flax and jute, flax chief: value, not exceeding 100 threads to the square inch,was classified for duty as manufactures of flax, under the provisions for such manufactures contained in paragraph 37lof the tariff act of October 1, 1890, (chapter 1244, 26 U. S. St. p. 567,) and duty at the rate of 50 per centum ad valorem, as provided by that paragraph, was exacted thereon by the collector of customs at that port. Against this classification and this exaction the importers protested, claiming that this merchandise, having, as its component material of chief value, tow.