Eisel v. Columbia Packing Company

• Citation: 181 F. Supp. 298
• Decision Date: 25 February 1960
• Docket Number: Civ. A. No. 58-1061.
• Parties: Emil EISEL v. COLUMBIA PACKING COMPANY et al.
• Court: U.S. District Court — District of Massachusetts

181 F. Supp. 298

Emil EISEL v. COLUMBIA PACKING COMPANY et al.

Civ. A. No. 58-1061.

United States District Court D. Massachusetts.

February 25, 1960.

Withington, Cross, Park & McCann, Philip M. Cronin, Boston, Mass., Mangan & Mangan, New Britain, Conn., for plaintiff.

Sloane & Walsh, C. W. Sloane, Carl G. Bergstedt, Boston, Mass., for defendants.

WYZANSKI, District Judge.

In this diversity jurisdiction case the question is whether under the law of Massachusetts the manufacturer of an alleged defective product when sued by the ultimate consumer complaining of injuries he says were caused by that product has the benefit of a judgment theretofore rendered in an action by the customer against the retailer wherein it was determined that the customer's injuries were not caused by the product.

Plaintiff is a citizen of Connecticut. Defendant is a Massachusetts corporation which packages hams and sells them to a Connecticut retailer. Plaintiff's representative bought one of defendant's hams from the Connecticut retailer; plaintiff ate the ham; and a few days later he was sick. Suing both the retailer and the packer in the Connecticut state court, plaintiff claimed that he had been injured by a defect in the ham. The packer alleged it was not properly served. Without waiting to have this plea in abatement determined, plaintiff elected to proceed against the retailer. The Connecticut court, finding that the ham did not cause the injury, entered judgment for the retailer. Plaintiff now seeks to recover from the packing company on a complaint alleging that he has injuries caused by eating the identical ham. The defendant packing company has moved for judgment on the ground that, under the doctrines of res judicata, plaintiff is collaterally estopped by the adjudication made in the action he brought against the retailer.

This being a diversity jurisdiction case the substantive rules of collateral estoppel are governed by the law of Massachusetts. So far as is revealed by research of counsel and the Court, there is no square ruling by the Massachusetts courts which governs this case, but there are lines of authority which lead in different directions.

In Massachusetts the classic authority is Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 89 N.E. 193, 40 L.R.A.,N.S., 314 affirmed in Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009. In that litigation the question was whether a stockholder who had lost a suit in New York for alleged breach of fiduciary duty by one of two corporate promoters acting jointly was estopped by findings made in the New York judgment when he later brought suit in Massachusetts against the other promoter. The Massachusetts court held that one of several joint tortfeasors cannot plead a judgment in favor of his joint tortfeasor against a plaintiff claiming to be injured by their joint act as an estoppel in a suit by the same plaintiff against him. 203 Mass. at page 216, 89 N.E. at page 218. "The reason * * * is that there can be no estoppel arising out of a judgment, unless the same parties have had their day in court touching the matter litigated, and unless the judgment is equally available to both parties * * * There is no privity between joint wrongdoers, because all are jointly and severally liable." 203 Mass. at page 217, 89 N.E. at page 218. "A party has a right to try his case against everybody who has done him a wrong by immediate and direct culpable action. He is not precluded by a failure against one alleged joint wrongdoer from attempting to pursue another. He is entitled to his day in court against a particular adversary." 203 Mass. at page 219, 89 N.E. at page 219. The state court, therefore, concluded that no effect had to be given to the New York judgment. The Supreme Court of the United States agreed that the full faith and credit clause of the Constitution, art. 4, § 1, did not require Massachusetts to treat the New York judgment as a basis for collateral estoppel. In reaching this conclusion, the Supreme Court stated that "the sounder reason, as well as the weight of authority, is that the failure to recover against one of two joint tort feasors is not a bar to a suit against the other upon the same facts." 225 U.S. at page 129, 32 S.Ct. at page 643.

The reasoning in Bigelow, while addressed to a situation where plaintiff sued in succession two joint tortfeasors, would logically apply to the situation in the case at bar where plaintiff sued in succession two persons who acted independently in inflicting upon him the same injury, even though the defendant first sued had a right of indemnification over against the second defendant. This logical application is indeed made in Restatement, Judgments, § 96(2). The comment to § 96(2) at p. 482 explains that "Where an action is brought first against the one secondarily liable there is ordinarily no reason for an exception to the ordinary rules of mutuality and hence, since it is clear that the person primarily liable should not be bound by an action in which he does not participate and in which he is not represented, there is ordinarily no reason for binding the unsuccessful claimant in the subsequent action." And Professor W. A. Seavey, one of the A.L.I. reporters for the Judgment Restatement, adds in a note in 57 Harv.L.Rev. 98, 105 that another reason for the rule is that general "principles would seem to require that a party to an action should risk the loss of rights on the creation of liabilities only with...