Paddock-Hawley Iron Co. v. Rice

78 S.W. 634, 179 Mo. 480, 1904 Mo. LEXIS 25

• Court: Supreme Court of Missouri
• Decided: February 10, 1904
• Status: Published

Opinion

MARSHALL, J.

— This is a suit in equity for contribution. In March, 1891, one E- E. Casebeer was engaged in business in Williamsville, Wayne county, Missouri. The plaintiff, and the defendants, Eice, Stix & Co., James Beakey Stove Co., and Clark Shoe Co. (which has since ceased to do business and its former directors are sued as trustees of the company) were engaged in business in St. Louis, and the defendant M. Deguire & Co. was engaged in business in Frederick-town, Missouri. Sometime prior to March 17,1891, the Peters-Miller Shoe Co. began an attachment suit against Casebeer and had it levied on his stock of goods. Thereupon on March 17, 1891, the Clark Shoe Co., James Beakey Stove Co., Rice, Stix & Co., and the Martin Clothing Co., separately and each for itself and without the knowledge of the other, instituted attachment suits against Casebeer. They placed their claims in the hands of the Ladd Collection Agency in St. Louis, and Ladd sent them to I. N. Davidson, an attorney at Poplar Bluff, and he employed S. R. Durham, an attorney at Piedmont, to help him.

On March 15, 1891, a traveling representative of the plaintiff went to Williarnsville, and presented a bill to Casebeer for what he owed the plaintiff. Casebeer gave him a draft for the bill, and on the next day he sold Casebeer another bill of goods. On March 18th, said representative was notified that the draft had not been paid and was directed to go to Williarnsville to ■attend to it. Upon arriving at Williarnsville said representative found the store locked np and learned that the Peters-Miller Shoe Company had attached the goods. He made inquiries about Casebeer’s affairs, and found that he had transferred all his goods and property to one Jay J. Smyth, of Iowa, to secure him what he owed him, and that Smyth was in possession when the Peters-Miller Shoe Company’s attachment was served. Thereupon said representative employed John R. Raney, an attorney at Williarnsville, and on March 19th instituted an attachment suit against Casebeer. Neither the plaintiff nor its representative nor its attorney knew at that time that Rice, Stix & Co., James Beakey Stove Co., Clark Shoe Co. and the Martin Clothing Company, had begun attachment suits against Casebeer, two days previously. But the plaintiff’s representative acted for the plaintiff alone and without consultation or concert of action with any other creditor. Thereafter, on March 21st, a member of the firm, of M. Deguire & Co. heard that Casebeer was in financial difficulty, and he went to Piedmont, and consulted John R. Raney, with the result that M. Deguire & Co. also began an attachment suit against Casebeer. But no member of that firm lmew when their attachment suit was begun that the plaintiff had begun an attachment suit against Casebeer two days previously, nor that any one else had done so, except one Joe Williams, and did not even know at that time of the conveyance by Case-beer to Smyth. They also employed Mr. Raney, as their attorney, but he says he did not tell Degnire & Co. that he represented the plaintiff herein, nor that they had started an attachment suit against Casebeer two days previously.

The clerk issued writs of attachment, in all the cases and placed them all in the sheriff’s hands at the same time, on March 23d, and the sheriff levied them on March 24th. Mr. Raney, acting for the plaintiff herein, says he directed the sheriff to levy the plaintiff’s attachment first and to levy upon property as to which the expenses would be as small as possible. None of the other creditors gave any directions whatever to the sheriff and were not present when the levy was made. The sheriff levied all the attachments on March 24th. In his return to the plaintiff’s writ he said he levied upon “all the personal property listed in the- schedule hereto attached and which is made a part of this return,” and in his returns upon all the other writs he said'he levied upon “all the personal property listed and scheduled and attached to my return in the case of Paddock-Hawley Iron Co. v. E. R. Casebeer, which list is made a part of this return. ’ ’

On March 28th, 1891, Rice, Stix & Co., Clark Shoe Co., Martin Clothing Co., and James Beakey Stove Co. each for itself obtained orders in their respective cases, for the sale of the personal property.

On May 4,189.1, the plaintiff, Paddock-Hawley Iron Co., and M. Degnire & Co., each for itself, obtained orders, in their respective cases, for the sale of the personal property. Thereafter the sheriff sold the attached proper for $2,174.70.

Oí uly 16, 1891, Jay J. Smyth filed interpleas in-each of the six attachment suits. The venue was, changed in all the cases from Wayne county to Reynolds county. The Deguire case was tried twice, the first time it resulted in a hung jury, and the second time a verdict was returned for the defendant, hut afterwards a new trial was granted. Upon these trials Mr. Raney, who was attorney for Deguire & Co., and also for the Paddock Hawley Iron Co., tried the case on behalf of the defendants. He was assisted by Mr. Yancey, who was attorney for the Peters-Miller Shoe Co., and for Williams & Co., and by Mr. L. F. Dinning, who was employed as special counsel in all the attachment cases. Mr. Durham was present but only as a witness. Mr. Davidson took no part in the trial.

Thereafter the case of the Peters-Miller Shoe Co. v. Casebeer; Smyth, Interpleader, was tried in the circuit court and resulted in favor of the plaintiff. The inter-pleader appealed to the St. Louis Court of Appeals, and that court reversed the judgment, but held that the evidence was insufficient'to support a finding that the conveyance to Smyth was fraudulent. [Peters-Miller Shoe Co. v. Casebeer, 53 Mo. App. 640.]

As the evidence adduced in that case was adjudged insufficient to support a judgment in favor of the attaching creditor, and as the evidence in all the other cases was the same, the attorneys for all the parties entered into a stipulation to be filed in each case, agreeing that judgments might be entered in each case in favor of the Interpleader Smyth, for the $2,939.30 in the hands of the sheriff resulting from the sale of the attached property.

Thereafter Smyth instituted suit against the Paddock-Hawley Iron Co., in Iowa, to recover the value of the goods that had been levied on under the attachment writs. The cause was removed to the United States Circuit Court for the northern district of Iowa, and the trial resulted in a judgment for the plaintiff therein for $4,549, principal and interest, $1,398 attorneys’ fees, and $704 costs. The court, however, required Smyth to bring suit against the sheriff of Wayne county, for the recovery of the $2,939.30 in his hands as aforesaid. This the plaintiff did, and recovered judgment against the sheriff, but as the court house had been burned and the records destroyed, it was not ascertained who his bondsmen were, so no judgment was obtained against them. Nothing was realized on the judgment against the sheriff. The Paddock-Hawley Iron Co. paid $250 attorney’s fees and expenses in the prosecution of this suit. Thereupon the Paddock-Hawley Iron Co. paid the judgment, attorney’s fees and costs and expenses in the United States Court for Iowa, amounting to $6,651.89, and then instituted this suit in equity against the other attaching creditors, except the Martin Clothing Co., which had failed.

The circuit court entered judgment for the defendants, and.the plaintiff appealed.

I.

. The plaintiff’s contention is that all the attaching creditors acted jointly; that although the writs were sued out at different times, they were all levied at the same time, and that the sheriff was their common agent; that the tortious act was committed without guilty intent, but in the prosecution of what they honestly believed to be their legal rights, and hence the right of contribution exists. Or that if there was no concert of action between the attaching creditors in the first instance, the defendants herein are liable because they ratified and affirmed the acts of their common agent, the sheriff, in levying simultaneously upon all the property, and also ratified the acts of their attorneys in making common cause in the defense of the Deguire suit, and afterwards in signing a single stipulation for judgment in-the six attachment cases, and that in addition to all this the trespass was single and the injured party was entitled to but one satisfaction.

On the other hand, the defendants deny that the attaching creditors acted jointly, and say that each acted separately, and that none of them knew the others had instituted proceedings ydien they commenced their suits; deny that the sheriff was their common agent, hut say he is the officer empowered by law to serve writs, and they had no power of appointment of an agent to serve their writs; deny that they gave the sheriff any directions about serving the writs, or that they knew he was going to .serve the writs simultaneously, and say the plaintiff was the only one who directed the sheriff, and it directed him to serve its writ first; deny that they knew that their attorneys also represented other creditors, and say it is immaterial if they did, especially as Williamsville is a small town and there are few attorneys there; deny that their attorneys made common cause with plaintiff’s attorneys in the trial of the Deguire case, or otherwise; deny that the signing of one stipulation to be filed in all the cases agreeing to a judgment in favor of Smyth constituted making a common cause; and deny that they are liable if there was no concert of actionr-no joint trespass even though the trespass was single so far as the injured party was concerned.

Upon the facts disclosed by the record there is no substantial basis for the charge that the trespass was joint, nor that it was ratified afterwards. Each creditor acted for himself. None of the parties to this action knew when they sued out their writs, that any of the other parties hereto had sued out writs. They all knew that the Peters-Miller Shoe Co. had sued out a writ and that it had been'levied, and Deguire & Co. knew that Williams had begun suit. The defendants, except Deguire, were represented by different counsel from the plaintiff, and their suits were begun two days before the plaintiff’s suit was begun, and while the plaintiff had a draft from Casebeer for ’frhat he owed them, and while they had an additional order from him for new goods, and before the draft was dishonored, or at any rate before the plaintiff’s traveling representative who sued out their attachment, knew that the draft was dishonored or that Casebeer had failed. The Deguire suit was instituted by the same counsel who represented the plaintiff, but was begun two days later than the plaintiff’s suit, and the counsel says he did not tell Deguire anything about the plaintiff’s suit nor that he represented them. None of the counsel representing the defendants, except Deguire, participated in the trial of the Deguire case, s,ave Mr. Dinning, and he was special counsel in all of the cases, but it does not appear that there was any concert of action between them in employing him. All the attorneys for the attaching creditors watched the trial of the Deguire case closely, not because it would determine their cases, but because the evidence would be the same in their cases, and they could see its effect on the Deguire case, and also learn the position and authorities of the counsel for the interpleader. But there was no concert of action. There was a common sympathy because they were pursuing a common debtor and fighting a common interpleader, but there was no unity of action nor of interest. The damage to the defendant and to the interpleader was single, but it would have been the same if only one creditor had attached, and there were no concurrent, separate acts that necessarily had to combine to produce the injury. Hence the attaching creditors were not connecting links in the chain of causation.

Therefore, upon the facts of this case, “the several attaching creditors were in no proper sense joint trespassers at all,” as was aptly said in the similar case of Brewster v. Gauss, 37 Mo. l. c. 519.

There is also no substantial evidence that the defendants ratified or affirmed any trespass that either had committed. The attorneys of Rice, Stix & Co., Clark Shoe Co., James Beakey Stove Co., and Martin Clothing Co., did not participate in — much less malee common cause in — the trial of the Deguire case. Mr. Durham, one of their attorneys, was present at the trial, but was there as a witness. Mr. Dinning was special counsel for all the attaching creditors, but there is no evidence that they made common cause in employing him, and there was no legal impediment in the way of his accepting employment from as many different clients as chose to employ him, so long as his acts in representing them were not necessarily inconsistent. Mr. Raney represented Deguire and also the plaintiff herein, but as there was nothing inconsistent in his representing both, so such employment did not make him their joint agent. [Frankenthal v. Lingo, 16 Tex. Civ. App. 229.]

The sheriff was the officer designated, except in specified cases not present here, by the law, to serve writs of attachment. He was not the agent — common, joint or special — of any of the attaching creditors. He had a legal duty to perform as to each, but he owed no common or special duty to them.

The signing of the stipulation agreeing to a judgment for the interpleader in each of the attachment suits, was in no just or proper sense an act of ratification of any previous step or act in the case, that had been taken jointly or separately. The case of Peters-Miller Shoe Co. had then been decided. That decision was a clean, unequivocal victory for the interpleader. There was nothing to be gained by further contesting these attachment suits. The attaching creditors simply surrendered. A surrender can not be construed into a ratification of previous separate acts of the defeated parties. The paper signed by all was simply a confession of inability to further injure, delay or fight the interpleader. It voiced no defense, no challenge, no plan of campaign, no declaration of purpose or of principle. It dealt with the then present and future and not with the past. It did not amount to a ratification of anything. This disposes of the first contention of the plaintiff, that the attaching creditors acted in concert.

II.

The remaining question is whether the defendants are liable even if they did not act in concert, but acted independently of each other.

The plaintiff contends that the defendants are liable, upon the ground that the trespass was single, and the injured party is entitled to but one satisfaction. This contention is supported by the eases of Vandiver v. Pollak, 107 Ala. 547; Sparkman v. Swift, 81 Ala. 233; Stone v. Dickinson, 5 Allen (Mass.) 29, and to some extent by Ellis v. Howard, 17 Vt. 330. But the weight of authority and the rule in this State is that in order that there may be contribution between tortfeasors, they must have acted jointly or by concert of action. The question whether or not the injured party is entitled to only one satisfaction or whether the trespass is single, does not determine the right to contribution. There must be actual unity of action between them to authorize contribution among them. [Jobe v. O’Brien, 2 Humph. 34; Navigation Co. v. Richards, 57 Pa. St. 142; Rhea v. White, 3 Head (Tenn.) 121; Miller v. Highland Ditch Co., 87 Cal. 430; Frankenthal v. Lingo, 16 Tex. Civ. App. 229; Brewster v. Gauss, 37 Mo. 518; Lesser v. Boekhoff, 33 Mo. App. l. c. 234; Spalding v. Bank, 78 Mo. App. l. c. 382; Hardware Co. v. Grocer Co., 64 Mo. App. l. c. 681; St. Louis v. Conn. Mut. Life Ins. Co., 107 Mo. 92.]

In Lesser v. Boekhoff, 33 Mo. App. l. c. 234, it was said, “The evidence required to prove a. joint trespass is analogous to that required to prove a conspiracy.”

In Frankenthal v. Lingo, 16 Tex. Civ. App. 229, it was held that where three creditors bring separate suits against the same defendant for separate debts, and sue out separate writs of attachment, which are levied at the same time, but in successive order, the mere fact that the plaintiff creditors all had the same agent and attorney in bringing tbe suits and levying the writs is not sufficient to authorize contribution among them.

In Miller v. Highland Ditch Co., 87 Cal. 430, it was held that, “several tortfeasors, not acting in concert or by unity of design, are not liable to a joint action for damages, although the consequences of the several torts have united to produce an injury to the plaintiff. ’ ’

Section 2870, Revised Statutes 1899, provides: “Defendants in a judgment founded on an action for the redress of a private wrong’ shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract.”

This provision has been upon the statute laws of this State ever since 1855 (R. S. 1855, p. 649, sec. 8), but it has never been construed to warrant contribution among tortfeasors unless there was concert of action among them. It was referred to in Brewster v. Gauss, 37 Mo. l. c. 519, and was said to be “general in its nature,” but was held not to apply to that case because £he attaching creditors “were in no proper sense joint trespassers. ’ ’

There is a well-defined difference between the liability of two or more tortfeasors to third persons, and the right of tortfeasors to contribution among themselves. As to third persons “tortfeasors are jointly and separately liable whether they acted in concert or independently.” [Hubbard v. Railroad, 173 Mo. 249; Newcomb v. Railroad, 169 Mo. 409.] And this is so, because where the acts of two or more persons combine to produce injury to third, innocent parties, the law will not attempt to ascertain how much injury the act of each produced and to hold each responsible only for his own wrong, but will hold all whose acts contributed in whatever degree to the injury for the whole injury, whether they acted independently or in concert. But, among tortfeasors themselves, the right to contribution depends upon totally different considerations. The general rule lias long been that contribution is‘ not allowed among tortfeasors. To this exceptions have grown up, the the principal of which is, that when there was no guilty intent in the tortious act, and there was concert of action, contribution is allowed.

A failure to differentiate between the liability of tortfeasors to ihird persons, and for contribution among themselves, has occasioned much of the confusion that appears in some of the adjudicated cases.

The weight of authority, supported by the better reason, and the rule in this State, is that the right to contribution does not exist unless there has been concert of action between the tortfeasors.

In this suit no such condition is present and therefore the judgment of the circuit court, denying contribution, is right, and its judgment is affirmed.

All concur.