Albright v. McTighe

• Decision Date: 13 February 1892
• Parties: ALBRIGHT v. McTIGHE et al.
• Court: U.S. District Court — Western District of Tennessee

49 F. 817

ALBRIGHT v. McTIGHE et al.

United States Circuit Court, W.D. Tennessee.

February 13, 1892

James M. Greer and J. S. Duval, for plaintiff.

McDowall & McGowan and Morgan & McFarland, for defendants.

Turley & Wright, for Sullivan.

HAMMOND District Judge.

This is an action of tort, brought by the plaintiff against 'the defendant, J. S. McTighe, I. L. McKee, and T. Sullivan, doing business under the firm name of J. S. McTighe & Company,' the declaration containing two counts,-- one for malicious prosecution of the plaintiff upon a criminal charge, the other for false imprisonment. Four plead were filed-- First not guilty, by 'the defendants J. S. McTighe and T Sullivan;' second, a like plea by 'the defendants J S. McTighe & Co;' third, a similar plea by 'the defendant I. L. McKee;' and, fourth, 'the defendants' plead not guilty, and say the imprisonment declared 'was in all respects lawful, and was not false or malicious. ' Upon these issues a trial was had resulting in a verdict and judgment for plaintiff 'against the said defendants, J. S. McTighe, I. L. McKee, and T. Sullivan, doing business under the firm name of J. S. McTighe & Company,' for $7,500, and 'the defendants' moved for a new trial. Subsequently the defendant T. Sullivan 'asks that a new trial may be awarded as far as he is concerned,' and files his affidavit 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 contract, 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 partnership was had by the said partners some nine months before the time of the transactions for which suit is here brought. No counter-affidavits have been filed to that of Sullivan, but it appeared in proof on the trial of this case that he was a witness for the state in the prosecution against the plaintiff here, which the declaration alleges was malicious. This defendant certainly now makes a strong showing for a new trial as to himself, and especially so when considered in view of the weakness of the testimony produced against him before the jury. If the fact be that at the time of the plaintiff's arrest 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 jury would have found altogether in his favor, or have mitigated the damages as against him, if only technically liable. The difficulty, however, is that this defense he now makes was not pleaded by him to the declaration, nor attempted to be established by testimony on the trial. His excuse for not having made this defense is that he did not know that he was sued, nor that he was interested in the case on trial, nor that a judgment had been rendered against him, until he saw an account of this trial in the newspapers, when he consulted his present counsel. Although he was served with process, it may be true that he did not appreciate the effect of it upon him; and, as his counsel argues, he supposed he was not involved, but only the firm as it stood when the plaintiff was arrested. Certainly no separate defense was made for him by counsel for the firm, and neither in the pleadings nor the trial nor the argument, except that it was argued that there was no proof against him, was any distinction made between him and the other defendants. Undoubtedly it is too late after judgment for a defendant to say that he did not know that he was sued, or was not aware of his defense, or the like, and, technically, it is no ground for a new trial. Yet the trial court, in exercising this power to grant new trials, looks over the whole field, and considers those features of the proceeding which are sometimes had to describe, but which nevertheless appeal strongly to the sense of justice in the application of technical rules like that. I noticed at the trial that Sullivan was not present, and seemed to be taking no interest in the suit, which was of such tremendous import, under the proof, for all who were responsible for the wrongful arrest and prosecution of the plaintiff. 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 the court was not aware of the facts now presented in his behalf; but at one time in the trial, when counsel so strenously argued for him that he had taken no part in the arrest or prosecution, except as a witness, and that the firm was 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 or disconnect himself with it, I made no distinction, on charging the jury, as to him, and the verdict was rendered against him on that theory. Therefore it was that no instructions were given at all with special reference to him, or to joint and several liability of the parties, and the case was tried as if all were equally liable.

But the question first presenting itself is, of course, whether a new trial can legally be granted him without awarding a new trial of the whole case, both as to him and his co-defendants. It is settled beyond all controversy that the liability of defendants in a suit of this kind is joint and several. All the persons liable, or any one or more of them, may be sued in the same action, and a recovery may be had against one or more or all the defendants in the suit, or plaintiff may, at his election, bring several actions against persons engaged in the same wrong-doing, joining them as he pleases, and may obtain several judgments for different amounts; but his acceptance of satisfaction of any one of the judgments will operate as a satisfaction of them all, except as to the costs. Lovejoy v. Murray, 3 Wall. 1, 10, 11; Chaffee v. U.S., 18 Wall. 516, 538; Cooley, Torts, 136. And in Tennessee, as elsewhere, the plaintiff may elect which judgment he will enforce. Knott v. Cunningham, 2 Sneed, 204; Christian v. Hoover, 6 Yerg. 505.

The defendants McTighe and McKee strenuously insist that Sullivan cannot alone be granted a new trial of the issue upon this record, as he was sued jointly with them, pleaded jointly with them, defended jointly with them at the trial, which resulted in a joint judgment against them all, and with them jointly moved for a new trial; 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 must be a new trial as to them also. Before taking up that question, it may be well enough to point out that possibly Sullivan is not entitled to a new trial so much because of any error as to any of them, but only as a matter of judicial condonation of his negligence, if it may be so expressed; though I suppose it must be treated rather as an error in the trial that the court did not call the attention of the jury more particularly to the fact 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 the verdict rendered jointly 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; Parker v. Godin, 2 Strange, 813; Doe de Dudgeon v. Martin, 13 Mees. & W. 810, and note a; 2 Tidd, pr. 911. The better doctrine is, however, otherwise, as the cases abundantly show; and while some of them endeavor to establish distinctions from the old rule, others boldly repudiate or ignore it altogether. In Price v. Harris, 25 E.C.L. 159, 10 Bing. 331, the action was against 17 defendants 'for injury in the nature of waste. ' There was a judgment by default against Proctor for l900, and a verdict for the other 16 defendants. The court granted the plaintiff a new trial as to Harris, upon payment of all costs except Proctor's, who was in no event to be held liable beyond the l900, and upon entering a nolle pros. as to the other 15 defendants. Brown v. Burrus, 8 Mo. 26, was an action of trespass against three defendants for taking away a negro girl; trial resulting in a verdict in favor of two of the defendants and against the other. Held, he could move for a new trial. In Palmer v. Kennedy, 7 J.J.Marsh. 498, the question was whether both defendants...