State v. North Shore Boom & Driving Co.

Decision Date19 February 1910
Citation107 P. 196,55 Wash. 1
CourtWashington Supreme Court
PartiesSTATE ex rel. NICOMEN BOOM CO. v. NORTH SHORE BOOM & DRIVING CO. et al.

On rehearing. For former opinion, see 103 P. 426.

CHADWICK, J.

In the main case, decided July 26, 1909 (103 P. 426), we held the defendant boom company, J. W. Kleeb, John F Hobi, and W. H. Abel for the civil damages resulting to the appellant from the continued use of appellant's boom ground, pending ineffectual attempts to carry the original controversy between the Nicomen Boom Company and the North Shore Boom &amp Driving Company to the Supreme Court of the United States. Mr. Abel is a stockholder in the North Shore Company. He was not an officer, but with other attorneys advised respondent company that it had a right to the use and occupation of the boom grounds in dispute pending the decision of the Supreme Court of the United States. The lower court found, and a careful review of the evidence has convinced us, that the advice of counsel was given in good faith, and in no way intended as an affront to the dignity of this or the trial court, or in contemptuous disregard of our orders, but under the mistaken idea that the judgment had been lawfully superseded. This we held was not so. Judgment being asked under the civil-damage statute (Ballinger's Code, § 5807 [Pierce's Code, § 1476]), and the amount thereof being subject to exact calculation, upon the findings of the trial judge we ordered judgment entered accordingly.

The point was not made on the argument of the main case, but upon rehearing we are asked to modify our decision, and direct that no judgment be entered against Mr. Abel. The point is made by appellant that, but for the advice of Mr. Abel, the judgment in this court would not have been disregarded; that he is more guilty than they, both Kleeb and Hobi, because of his knowledge and understanding of the law, and that he should therefore be held to respond to a fine equaling the amount of damages suffered. The question of Mr. Abel's willful contumacy is foreclosed by our former opinion. Had we found him to be chargeable with contumacious conduct, we would have so declared and subjected him to a fine therefor. But the question now before us, broadly stated, is whether an attorney, who in good faith and with some foundation for his opinion, so advised his client that the client disregards an order of the court, should be held jointly with the client to pay to the party aggrieved civil damages which the court has the power to assess as compensation under the statute. The power to punish for contempt inheres in all courts of record, and can be exercised independently of the statute. But the power to award an indemnity in the way of a fine to the injured party rests wholly upon the statute, and in the exercise of its power the court cannot go beyond its terms. 9 Cyc. p. 54. Where indemnification to the party is allowed, the rule is that, where the alleged contempt is not willful or defiant, but the act was an exercise of a supposed right done under the advice of counsel given in good faith the act will not be punished as a direct, constructive, or criminal contempt, but as a civil contempt; that is, the offending party will be required to make the other party whole for the damages sustained thereby. French v Commercial National Bank, 79 Ill.App. 110; Matthews v. Spangenberg (C. C.) 15 F. 813; Smith v. Cook, 39 Ga. 191; Hawley v. Bennett, 4 Paige (N. Y.) 163.

The remedy of the statute, as was said in our first opinion, is in lieu of the ordinary action for damages. Referring now to the language of the statute: 'If any loss or injury to a party in an action, suit or proceeding, prejudicial to his rights therein, have been caused by the contempt, the court * * * may give judgment that the party aggrieved recover of the defendant a sum of money sufficient to indemnify him' etc.--this statute requires construction only as to the meaning of the words 'contempt' and 'defendant,' as employed therein. Manifestly the contempt is the act of the other party to the controversy the party litigant, or, if a corporation, such of its servants and officers as are named in or bound by the injunctive order. There is nothing in the statute to indicate that it was intended to include one who in good faith advises the wrong. It is unquestionably the rule that an attorney will not be held either for a direct or constructive contempt, unless it is made to appear that he willfully offended against the dignity of the court. An offending attorney would be liable to the state for a willful disregard of the orders of the court, but it would require a forced construction of the statute to make him subject to civil liability because of his advice honestly given. Regardless of the statute now under consideration, the undoubted rule is that, if an attorney acts an honest part, and is actuated by no improper motives, he cannot be held liable for a tort because of his mistaken advice and its consequences. Roth v. Shupp, 94 Md. 55, 50 A. 430; Farmer v. Crosby, 43 Minn. 459, 45 N.W. 866; Cooley on Torts (3d Ed.) 221. In High on Injunctions (4th Ed.) § 1440b, it is said: 'But it is to be observed that, where it is sought to hold one who is not a party to the suit or named in the writ liable for disregarding an injunction, the punishment is imposed, not upon the theory that the person thus charged is in any way bound by the injunction itself, or that he is guilty of a technical violation of the writ, but solely for the purpose of protecting and upholding the power and dignity of the court as against one who, although not bound by the injunction as a party to the suit, has knowingly and willfully defied the authority of the court in setting its order at naught. In such case the proceeding is criminal in its nature, and is without regard to any injury which may be inflicted upon the defendant as the result of the violation of the writ, and it is to be distinguished from a contempt proceeding against a party to a suit for a violation of the injunction, which is remedial in its character, and is ordinarily brought for the purpose of affording redress and compensation to the plaintiff for the injury resulting from the violation of the writ. Where, therefore, a contempt proceeding is brought against a person upon the theory that he is technically bound by the injunction as a party to the...

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