Lawlor v. National Screen Service Corp.
| Decision Date | 30 March 1954 |
| Docket Number | No. 11210.,11210. |
| Citation | 211 F.2d 934 |
| Parties | LAWLOR et al. v. NATIONAL SCREEN SERVICE CORP. et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Francis Anderson, Philadelphia, Pa. (Gray, Anderson, Schaffer & Rome, Philadelphia, Pa., on the brief), for appellants.
Louis Nizer, New York City (Phillips, Nizer, Benjamin & Krim, New York City, Walter S. Beck, New York City, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., Louis J. Goffman, Mitchell E. Panzer, Philadelphia, Pa., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Wm. A. Schnader, Earl G. Harrison, Edward W. Mullinix, Philadelphia, Pa., on the brief), for appellees.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
This suit arises upon a matter collateral to the distribution and exhibition of motion picture films. The plaintiffs ("Poster Co.") are engaged in the business of leasing advertising posters ("standard accessories") to exhibitors in the Philadelphia area. The defendant ("Screen Corporation") distributes standard accessories, specialty accessories and "trailers" in the Philadelphia area and on a nation-wide basis. Screen Corporation has been granted exclusive licenses to distribute this material by all of the major moving picture producers.
In 1942 Poster Co. instituted a treble-damage suit against Screen Corporation and three of the eight producers who are defendants in the present action. Poster Co. also sought an injunction. By stipulation of the parties this suit was dismissed with prejudice on April 21, 1943. By a contract dated the same day, Screen Corporation agreed to furnish Poster Co. with standard accessories and granted Poster Co. a nonexclusive license to compete with it in Philadelphia. This contract was renewed in 1946 for a five-year period.
In 1949 Poster Co. commenced the present action against Screen Corporation and the eight producers, and again sought an injunction and treble damages from 1943 to 1949. In 1951 Judge McGranery granted Poster Co.'s motion for summary judgment as to an injunction against Screen Corporation only, but a final decree was never framed. In 1953 Judge Kirkpatrick granted the defendants' motion to dismiss on the grounds that the 1942 judgment was res judicata of this claim.
The phase of the doctrine of res judicata here concerned is the effect of the 1942 dismissal with prejudice as a bar to the present suit. No question of collateral estoppel by the former judgment is involved because the case was never tried and there was not, therefore, such finding of fact which will preclude the parties to that litigation from questioning the finding thereafter.1 Nor is there any question of merger of plaintiffs' claims by the 1942 judgment, because, by the dismissal with prejudice, the defendant is the record winner in the original suit.
What did the 1942 judgment do to the possibility of recovery in this suit? It should be noted at the outset that our problem here is not affected by the fact that the dismissal of the 1942 action was by stipulation instead of the result of a trial on the facts and the law. A consent judgment or, like the one present, one which is a "dismissal with prejudice" has the same effect as a bar as if the case had gone to trial and the judgment rendered thereafter. 2 Freeman on Judgments 1395-96 (5th ed. 1925); United States v. Parker, 1887, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601; Urbino v. Puerto Rico Ry. Light & Power Co., 1 Cir., 1947, 164 F.2d 12.
The decision of the case is going to depend upon whether the plaintiffs in the present suit are suing upon the "same cause of action" as that upon which they sued in 1942 and lost. If they are, then they are barred from suing again. If they are not, they may maintain this action. This Court struggled with the "cause of action" question in Williamson v. Columbia Gas & Electric Corp., 3 Cir., 1950, 186 F. 2d 464, but the problem in that case was so different from the one here that we do not see that it materially aids our solution. It is recognized that the term may change its meaning when used in different situations. Restatement, Judgments, Introductory Note p. 239 (1942). There is already a goodsized body of legal literature on the question of what constitutes a cause of action, a subject upon which learned doctors disagree. Some of the literature on the problems is reviewed in "Res Judicata Reexamined" by Edward W. Cleary in 57 Yale Law Journal 339, 340 n. 7 (1948). Perhaps some words of that author (though not in context) show the difficulties here involved. He is talking about situations where a plaintiff splits his cause of action and he says at page 346: "In deciding such cases, the concept of a cause of action possesses real utility if applied with realization of what actually is at issue and with due regard for the other factors herein discussed." This sounds easy if one says it fast. The core of our problem is to find out whether what is at issue is the same thing as what was at issue.
Some situations are easy to solve and those are the ones upon which it is easy to find authority. Take the case of a single isolated tort, for instance. A attacks B and beats him. Six months later he does it again. Whatever judgment might be rendered, for either party, in a suit for the first battery would not be a bar to a suit for the second battery. Restatement, Judgments § 61, comment c (1942). The only possibility of its having any effect in the suit for the second battery would be the binding effects of collateral estoppel, if there were any. We have somewhat the same thing where the tort claimed is a repeated trespass to land by entering and cutting timber. Here, too, the invasion of the plaintiff's interest is a separate one each time and recovery or defeat in a first suit will not preclude a second unless some element of collateral estoppel is involved.2 When the plaintiff's complaint is for a nuisance maintained by the defendant or for a continuing invasion of plaintiff's land, by a structure on the defendant's land, then the question becomes complicated with factors such as the permanence of the structure, whether the invasion can be abated by means of an injunction, and so on. Here the problems have become so complex that there is little to be gained by referring to analogies which, themselves, show only a state of confusion.3
All this leads up to the instant problem...
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