Balch v. Haas

• Decision Date: 13 April 1896
• Docket Number: 710.
• Citation: 73 F. 974
• Parties: BALCH et al. v. HAAS.
• Court: U.S. Court of Appeals — Eighth Circuit

73 F. 974

BALCH et al. v. HAAS.

No. 710.

United States Court of Appeals, Eighth Circuit.

April 13, 1896

Frank B. Kellogg (C. K. Davis, C. A. Severance, Arthur M. Keith, r G. Evans, Charles T. Thompson, and Edward K. Fairchild were with him on the brief), for plaintiffs in error.

N.M Thygeson (M. D. Munn, J. M. Gilman, and A. E. Boyesen were with him on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This case was before us at a previous term on a writ of error that was sued out by Julius Haas, the present defendant in error who was the plaintiff in the circuit court. Haas v Balch, 12 U.S.App. 534, 6 C.C.A. 201, and 56 F. 984. A full statement of the case will be found in our former opinion. On the second trial in the circuit court, Haas recovered a judgment against the present plaintiffs in error, Foster L. Balch and Henry E. Wetherbee, in the sum of $7,500, and they in turn have brought the proceedings on the second trial here for review.

The present record presents but two questions which we deem it necessary to consider. The first of these is whether the former decision of this court conclusively established the fact that Louis Clausen, the foreman of the gang under whom Haas worked, was a vice principal of the plaintiffs in error, so as to preclude all further consideration of that point; and, in the event that the proposition last stated, which is maintained by the defendant in error, proves to be untenable, the second inquiry is whether Haas and Clausen were in fact fellow servants. It is a well-established doctrine, in the federal courts at least, that a second writ of error or a second appeal in the same case only brings up for review the proceedings of the trial court subsequent to the mandate, and that it does not authorize a reconsideration of any questions, either of law or fact, that were considered and determined on the first appeal or writ of error, provided the testimony on each trial was substantially the same. This doctrine results from the fact that a judgment rendered by an appellate court in a given case is conclusive on the parties thereto, and that an appellate court, like a nisi prius court, is powerless to review or revise its own judgments after the lapse of the term at which they were rendered, except in cases of fraud. Another form of stating the doctrine is that propositions of law which were considered and decided on a first appeal become the law of that particular case, and, whether right or wrong, must be adhered to on a second appeal. Thatcher v. Gottlieb, 19 U.S.App. 469, 8 C.C.A. 334, and 59 F. 872, and cases there cited; Tyler v. Magwire, 17 Wall. 253, 283; Supervisors v. Kennicott, 94 U.S. 498; Clark v. Keith, 106 U.S. 464, 1 Sup.Ct. 568; Sizer v. Many, 16 How. 98; Corning v. Nail Factory, 15 How.478, 494; Sibbald v. U.S., 12 Pet. 488, 492; Martin v. Hunter, 1 Wheat. 304, 355. Conceding the foregoing doctrine to be sound, it is to be observed, in the first place, that this court was not asked to determine on the first appeal whether Haas and Clausen were fellow servants, and no opinion was in fact expressed on that point. Haas v. Balch, 12 U.S.App. 534, 6 C.C.A. 201, and 56 F. 984. That question was not discussed by counsel for either party, either by brief or on the oral argument. Besides, on the former hearing, the case came before this court on a record which showed very clearly, as we think, that the fellow-servant question was not debated in the circuit court, and that the judgment below was predicated on other grounds. The former record not only disclosed that the decision of the lower court had not turned on the fellow-servant question, but the printed argument then filed in behalf of the plaintiff in error contained the statement that 'at the close of plaintiff's testimony the trial court directed a verdict for defendant on the ground that plaintiff was guilty of contributory negligence'; and the entire argument so filed was devoted to a discussion of the questions whether the view thus entertained by the trial court was correct, and whether the plaintiff had sustained the injury complained of in consequence of one of the known risks of the employment which he had voluntarily assumed. Very naturally, therefore, and very properly, this court confined its former decision to these points. Our rules, particularly rule 24-- have been framed for the express purpose--among others, of preventing surprises, as far as possible, by requiring counsel on both sides of a case to specify in their briefs with reasonable certainty the grounds upon which they will rely either for a reversal or an affirmance. When this has been done, we do not consider it our duty to travel outside of the lines as they have been laid, or to decide questions which counsel have not seen fit to discuss, especially if they are mixed questions of law and fact which may be presented on different evidence, and in a new light on a second appeal. It is doubtless true that this court might have been called upon to decide on the former appeal whether, on the state of facts then disclosed, Haas and Clausen occupied the relation of fellow servants; but counsel on both sides were apparently content to confine the ruling then made to the single question whether there was any evidence of culpable negligence, either on the part of Haas or Clausen, inasmuch as that was the only question that had been determined by the circuit court.

In view of these considerations, we think that our former decision does not preclude us from determining whether, on the state of facts disclosed by the present bill of exceptions, Clausen was a vice principal or a fellow servant. As the rule which counsel for the defendant in error have invoked is sometimes, and, as we think, most accurately, stated, it only precludes consideration on a second appeal of those points which were distinctly made and determined on the first hearing. Thus in two cases the rule was stated by the supreme court of California substantially as follows: A ruling by an appellate court upon a point distinctly made upon a previous appeal is in all subsequent proceedings in the same case a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves. Phelan v. San Francisco, 20 Cal. 39; Leese v. Clark, Id. 387,416,417. Moreover, the rule in question does not bar the consideration, on a second appeal, of incidental questions which were considered and decided on a prior appeal. With reference to the latter point the supreme court of Indiana said: 'In our opinion, a decision rendered on appeal does not conclusively determine merely incidental or collateral questions, but determines only such questions as are presented for decision, and are decided as essential to a just disposition of the pending appeal. ' Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464, 472, 2 N.E. 194. And in the case of Haynes v. Town of Trenton, 123 Mo. 326, 335, 27 S.W. 622, it was held that an appellate court is not precluded on a second appeal from reversing a case on account of an erroneous instruction, although the same instruction was given on the first trial, and was incorporated into the first bill of exceptions, it appearing that the instruction was not distinctly called to the court's attention, and made a ground of complaint on the first appeal. The court said, in substance, that it could see no possible basis for holding the defendant estopped to object to the instruction on the second appeal, even conceding that it was not objected to on the first appeal; and that, although the error in the instruction was waived on the first appeal, the aggrieved party did not thereby consent to the same error at a second trial, or estop itself to then object to such error. As might be expected, we are naturally indisposed to hold a litigant bound by a supposed ruling on a point that was not raised on the former appeal, and was neither argued nor considered; and, in our judgment, the authorities, when rightly construed, do not require us to so hold, or to decide that the mere fact that the fellow-servant question might have been argued and decided on the first hearing, now estops the plaintiffs in error from raising that issue.

The conclusion last announced is further fortified by the fact that the testimony produced on the last trial differs in one important...