Portland Gold Min. Co. v. Stratton's Independence, Ltd.

• Decision Date: 06 December 1907
• Docket Number: 2,649.
• Citation: 158 F. 63
• Parties: PORTLAND GOLD MINING CO. v. STRATTON'S INDEPENDENCE, Limited, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F. 63

PORTLAND GOLD MINING CO. v. STRATTON'S INDEPENDENCE, Limited, et al.

No. 2,649.

United States Court of Appeals, Eighth Circuit.

December 6, 1907

Syllabus by the Court

The general rule that one may not have the benefit of a judgment as an estoppel, unless he would have been bound by it had it been the other way, is subject to recognized and rational exceptions, one of which is that in actions of tort, such as trespass, if the defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not have been bound by it had it been the other way.

Tyson S. Dines and Horace N. Hawkins (W. J. Chinn, Elmer E. Whitted and O. L. Dines, on the brief), for plaintiff in error.

Clayton C. Dorsey and William V. Hodges, for Stratton's Independence, Limited.

C. A Gillette, for Thomas Burbridge.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District Judge.

VAN DEVANTER, Circuit Judge.

This was an action by the Portland Gold Mining Company, a Wyoming corporation, against Stratton's Independence, Limited, an English corporation, J. W. Price, T. B. Burbridge, and others, whose presence in the litigation has become immaterial, to recover damages for a trespass to real property. Stratton's Independence and Burbridge answered separately, the answer of each being substantially a general denial, and Price, without answering, appeared at the trial attended by counsel, and secured a verdict in his favor, as here stated. At the conclusion of all the evidence Stratton's Independence moved for a directed verdict, and the motion was sustained. The plaintiff then indicated that it would not ask a separate verdict against Price or Burbridge, and a motion for a directed verdict interposed by them was sustained. The trial thus resulted in a verdict and a judgment against the plaintiff, and it sued out this writ of error. The ruling on the motion of Stratton's Independence was excepted to at the time and error is assigned thereon now, but no exception was taken to the ruling on the motion of Price and Burbridge, and it is not questioned now.

The case made by the evidence was this: The plaintiff and Stratton's Independence were, respectively, the owners of adjoining mining properties. Stratton's Independence leased to Burbridge, for mining purposes, a portion of its mine far beneath the surface and adjacent to the line dividing the two properties. The lease in terms prohibited the lessee from extending his mining operations outside of the leased premises, required him to actively mine them, and reserved to the lessor the right to market the ore and to retain a substantial share of the proceeds as rental. Before any work was done, an arrangement was effected between Burbridge and Price whereby the latter had charge of the mining operations under the lease, and, if a trespass was committed, it was because these operations were extended outside of the leased premises and into the property of the plaintiff. But Stratton's Independence was not a participant in these operations, and was not responsible for such a trespass, unless it be that it marketed the ore and retained part of the proceeds with knowledge of the place from which, and the circumstances in which, the ore was obtained, and thereby, in legal contemplation, adopted or ratified a wrongful act done by another partly for its benefit. See Dempsey v. Chambers, 154 Mass. 330, 28 N.E. 279, 13 L.R.A. 219, 26 Am.St.Rep. 249. Whatever ore was obtained by those operating under the lease was marketed, and the proceeds distributed, as if obtained from the leased premises. Whether or not there was any substantial evidence of an adoption or ratification by Stratton's Independence of a trespass by those operating under the lease was the subject of opposing contentions at the conclusion of the trial, and was ruled adversely to the plaintiff. The controversy is renewed here, but its consideration and determination will be both unnecessary and inappropriate, if for other reasons the judgment must be affirmed.

It is plain that the plaintiff's right, if any it had, to hold Stratton's Independence for a trespass was dependent, first, upon the commission of the trespass by those operating under the lease; and, second, upon its adoption or ratification of their act. They were the immediate actors, and, if guilty of a trespass, were personally responsible therefor, whether or not responsibility was also cast upon it. But, as it was not a participant in the mining operations, and, if responsible at all, became so only by adopting or ratifying their act, it follows that no responsibility was cast upon it unless personal responsibility also attached to them. As quite apposite, we quote from New Orleans & Northeastern R.R. Co. v. Jopes, 142 U.S. 18, 24, 27, 12 Sup.Ct. 109, 35 L.Ed. 919, a case in which it was sought to hold a railroad company for the act of its conductor in injuring a passenger:

'It would seem on general principles that, if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to like immunity. * * * If the immediate actor is free from responsibility, because his act was lawful, can his employer, one taking no direct part in the transaction, be held responsible? * * * The question carries its own answer, and it may be generally affirmed that if an act of an employe be lawful, and one which he is justified in doing, and which casts no personal responsibility upon him, no responsibility attaches to the employer therefor.'

Here the immediate actors were exonerated by the judgment in their favor, which is none the less effective as a final adjudication because resting upon a verdict directed with the plaintiff's virtual consent. Nashville, etc., Co. v. United States, 113 U.S. 261, 5 Sup.Ct. 460, 28 L.Ed. 971; United States v. Parker, 120 U.S. 89, 7 Sup.Ct. 454, 30 L.Ed. 601; Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 691, 15 Sup.Ct. 733, 39 L.Ed. 859. Is Stratton's Independence entitled to the benefit of that adjudication? Its counsel insist that it is. The contention is not new, but in various relations has been often the subject of consideration and decision in the courts. The objections urged against it now and heretofore are (1) that, as the responsibility of joint tort-feasors is several as well as joint, one may be exonerated and another held culpable; and (2) that one may not have the benefit of an adjudication as an estoppel, unless he would have been prejudiced by it had it been the other way. But it is quite generally held that these objections do not prevent an estoppel where, as here, the one exonerated was the immediate actor and his personal culpability is necessarily the predicate of the plaintiff's right of action against the other, and we think that upon principle this ought to be true.

One of the earliest cases in which the question arose is Ferrers v. Arden, 2 Cro.Eliz. 668, which was trespass on the case for the conversion of an ox. The defendant pleaded that in a prior action for the same trespass, prosecuted by the same plaintiffs against other defendants, the latter had justified in his right and were acquitted, and it was held that, if the second action was for the same cause, the defendant's plea was good; for 'although he be a stranger to the record, whereby the plaintiffs were barred yet he is privy to the trespass, wherefore he well may plead it, and take advantage of it. ' In another relation, the same question arose in Biggs v. Benger, 2 Ld. Raymond, 1372, an action of trespass against two defendants. One made default, and the other pleaded that the act charged was done by him in the right of his codefendant and under the license of the plaintiff. The latter took issue on the plea, which was found against him, and it was held that the defendant who made default was entitled, on motion in arrest, to the benefit of the plea because it showed that the plaintiff could have no cause of action against him. Of like import are 2 Tidd's Pr. 895, 2 Black on Judgments, Sec. 781, and Williams v. McGrade, 13 Minn. 46, 54 (Gil. 39). A leading case in this country is Emery v. Fowler, 39 Me. 326, ...