225 U.S. 111
ALBERT S. BIGELOW, Plff. in Err.,
OLD DOMINION COPPER MINING & SMELTING COMPANY.
Nos. 191 and 192.
Argued March 5 and 6, 1912.
Decided May 27, 1912.[ Bigelow v. Old Dominion Copper Mining &
Smelting Co. 225 U.S. 111 (1912) ]
[225 U.S. 111, 113] Messrs. John C. Spooner, George Rublee, Joseph P. Cotton, Jr., Charles H. Tyler, Owen D. Young, Burton E. Eames, and William C. Rice for plaintiff in error.
[225 U.S. 111, 124] Messrs. Louis D. Brandeis and Edward F. McClennen for defendant in error.
Mr. Justice Lurton delivered the opinion of the court:
The question upon which these cases have been brought to this court is whether the Massachusetts court gave to a New York judgment pleaded as bar to a Massachusetts suit that full faith and credit required by the 1st section of article 4 of the Constitution of the United States, and 905, Revised Statutes (U. S. Comp. Stat. 1901, p. 677), enacted in pursuance thereof.
The Old Dominion Copper & Smelting Company, hereafter designated the Copper Company, a corporation [225 U.S. 111, 125] of New Jersey, filed two bills in an equity court of Massachusetts against the plaintiff in error, Albert S. Bigelow, to recover secret profits realized by him and an associate, one Lewisohn, as organizers or promoters of the Copper Company, in selling the mining property of another corporation, called the Baltimore Company, and certain neighboring properties, designated in the transcript, 'outside properties.'
The two sales were for distinct considerations. The bills alleged that when these sales were made the Copper Company was under the absolute control of the two promoters, Bigelow and Lewisohn, and that they divided the profits between them. The fundamental facts in each case were the same. The two cases were heard together in the state courts, and are now heard as if one case, though upon separate writs and distinct records.
Demurrers were interposed and overruled. The allegations of the bills are fully shown in 188 Mass. 315, 108 Am. St. Rep. 479, 74 N. E. 653, where one of the cases was considered on demurrer. Answers were then filed and a great mass of evidence taken. Upon a full hearing the allegations of the respective bills were held to be sustained by the proofs, and final decrees were rendered for the plaintiff in sums aggregating $2,178,673.33. The decrees were affirmed in the supreme judicial court.
The Federal question, upon which the judgment of this court is sought, arose in this wise: Bigelow, the plaintiff in error here, was a citizen of Massachusetts, and was therefore sued in the courts of that state. Lewisohn, who was Bigelow's associate promoter, was a citizen of New York. He was therefore sued separately in the circuit court of the United States for the southern district of New York. The bills filed there were identical in every essential with those filed in Massachusetts. In the two sets of bills it was alleged that Bigelow and Lewisohn were joint promoters of the Copper Company, and [225 U.S. 111, 126] as such made the sales to it while under their entire control, and that they had realized fraudulent profits. Demurrers were interposed in the New York cases, which were sustained, and the bills dismissed. These judgments were affirmed in the circuit court of appeals for the second circuit. The judgment in one of these cases, that relating to the sale of 'outside properties,' was brought to this court by certiorari and affirmed, the opinion being by Mr. Justice Holmes ( 210 U.S. 206 , 52 L. ed. 1025, 28 Sup. Ct. Rep. 634), where the facts of the case are stated.
The final decree in one of the New York cases was pleaded in a supplemental answer in the pending Massachusetts cases as a bar to the suits against Bigelow. The Massachusetts court adjudged that Bigelow was neither a party nor a privy to the New York suits, and was therefore not protected by the judgment therein.
To conclude Bigelow by the New York judgment, it must appear that he was either a party or a privy. That he was not a party to the record is conceded. He had no legal right to defend or control the proceedings, nor to appeal from the decree. He was therefore a stranger, and was not concluded by that judgment as a party thereto. That he was indirectly interested in the result because the question there litigated was one which might affect his own liability as a judicial precedent in a subsequent suit against him upon the same cause of action is true, but the effect of a judgment against Lewisohn as a precedent is not that of res judicata, and the Massachusetts court was under no obligation to follow the decision as a mere judicial precedent. Nor would assistance in the defense of the suit, because of interest in the decision as a judicial precedent which might influence the decision in his own case, create an estoppel as to Bigelow. Stryker v. Goodnow (Stryker v. Crane) 123 U.S. 527 , 31 L. ed. 194, 8 Sup. Ct. Rep. 203. Also Rumford Chemical Works v. Hygienic Chemical Co. 215 U.S. 156 , 54 L. ed. 137, 30 Sup. Ct. Rep. 45. [225 U.S. 111, 127] But it is said that if Bigelow was not in every sense a party, he was privy to Lewisohn, who was, and that the estoppel in the adverse judgment in the suit against Lewisohn protected Bigelow as well.
But would that judgment, if it had been for the plaintiff in that case, have bound Bigelow in a subsequent suit by the same plaintiff, upon the same facts? If not, upon what principle may he claim the advantage of it as a bar to the present suit? The cause of action was one arising ex delicto. It was several as well as joint. The right of action against both might have been extinguished by a settlement with one, or by a judgment against one, and satisfaction. But the claim has come in substance to this: that although the plaintiff had a remedy against Lewisohn and Bigelow severally or jointly, a failure to recover in an action against one is a bar to his action against the other, the facts being the same, although there has been no satisfaction for the injury done. The only basis upon which such a result can be asserted is that Bigelow would have been bound by the judgment if it had been adverse to Lewisohn, and may therefore shelter himself behind it, since it was favorable to his joint wrongdoer.
It is a principle of general elementary law that the estoppel of a judgment must be mutual. Brooklyn & N. R. Co. v. National Bank, 102 U.S. 14 , 26 L. ed. 61; Keokuk & W. R. Co. v. Missouri, 152 U.S. 301 , 38 L. ed. 450, 14 Sup. Ct. Rep. 592; Freeman, Judgm. 159; 1 Greenl. Ev. 13th ed. 524. The mutuality of estoppel by judgment is fully recognized in both the New York and Massachusetts decisions: Atlantic Dock Co. v. New York, 53 N. Y. 64; Brigham v. Fayerweather, 140 Mass. 411, 415, 5 N. E. 265; Nelson v. Brown, 144 N. Y. 384, 39 N. E. 355.
An apparent exception to this rule of mutuality had been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts when sued by the [225 U.S. 111, 128] same plaintiff. See Portland Gold Min. Co. v. Stratton's Independence, 16 L.R.A.(N.S.) 677, 85 C. C. A. 393, 158 Fed. 63, where the cases are collected. The unilateral character of the estoppel of an adjudication in such cases is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct suit. The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee.
The principle upon which one may avail himself of the effect of a judgment adverse to the plaintiff in a former suit against the immediate actor, is thus stated in New Orleans & N. E. R. Co. v. Jopse, 142 U.S. 18, 24 , 27 S., 35 L. ed. 919, 923, 925, 12 Sup. Ct. Rep. 109.
It is too evident to need argument that the remedy of this plaintiff does not depend upon the culpable conduct of Lewisohn, but upon Bigelow's own wrong, whether alone or in co-operation with Lewisohn. The liability of each was several as well as joint, and a failure to recover against one is no bar to a suit against the other upon the same facts. But a judgment not only estops those who are actually parties, but also such persons as were represented by those who were or claim under or in privity with them.
What is privity? As used when dealing with the es- [225 U.S. 111, 129] toppel of a judgment, privity denotes mutual or successive relationship to the same right of property. Litchfield v. Goodnow (Litchfield v. Crane) 123 U.S. 549 , 31 L. ed. 199, 8 Sup. Ct. Rep. 210. The ground upon which privies are bound by a judgment, says Prof. Greenleaf, in his work upon Evidence, 13th ed. vol. 1, 523, 'is, that they are identified with him in interest; and wherever this identity is found to exist, all are alike concluded. Hence, all privies, whether in estate, in blood, or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity.'
But it is said that the relationship of joint tort feasors is such as to constitute privity, and that a judgment in a suit in favor of one upon the same identical cause of action is a bar to a suit by the same plaintiff against the other wrongdoer. Whether the estoppel of a judgment is to be confined to those who were actually parties or privies in estate or interest, or may be expanded so as to include joint tort feasors, not actually parties, is a question concerning which there is some diversity of opinion. But, as we shall later see, the sounder reason, as well as the weight of authority, is that the failure to recover against one of two joint tort feasors is not a bar to a suit against the other upon the same facts.
Passing this for the time, we come to a consideration of the contention that, whatever the general law upon this subject, if such was the effect of such a judgment under the law of New York, it was the duty of the Massachusetts court, under the full faith and credit clause, to give it like effect in the present suit.
That the judgment in question is entitled to the same sanction which would attach to a like judgment of a court of the state of New York is plain. The United States court was in the exercise of jurisdiction to administer the laws of the state, since its jurisdiction depended solely upon diversity of citizenship. Its judgment is therefore entitled in the courts of another state to the [225 U.S. 111, 130] same faith and credit which would attach to a judgment of a court of the state of New York. Dupasseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588; Deposit Bank v. Frankfort, 191 U.S. 499, 514 , 48 S. L. ed. 276, 282, 24 Sup. Ct. Rep. 154. What, then, is the effect of such a judgment, under the law of New York, as an estoppel in a subsequent suit upon the same facts by the same plaintiff against Bigelow. This was a question of fact in the Massachusetts court. Hanley v. Donoghue, 116 U.S. 1 , 29 L. ed. 535, 6 Sup. Ct. Rep. 242. Expert legal opinion is favorable to the view urged by the plaintiff in error, though the ground upon which such a consequence rests is by no means clear. The highest courts of New York have not clearly decided the precise question here presented. The cases referred to or commented upon by the witnesses cannot be said to clearly point to the conclusion claimed. Nevertheless, the Massachusetts court, treating the question as one of fact, accepted the view that, under the law of New York, this judgment would have been a bar to another suit upon the same facts against Bigelow, in the courts of New York. We shall do likewise. The Massachusetts courts held that, under the general law, which was the applicable law of Massachusetts, the New York court had no such jurisdiction over the person of Bigelow as to affect him, either as a party who might have controlled the case or appealed from the judgment; and that he was in no sense such a privy as to be bound by it. Upon the general law as to the estoppel of such a judgment, that court said:
The cause of action was one arising ex delicto, and the liability of Lewisohn and Bigelow was several as well as joint. In many cases this court has held that a judgment without satisfaction against one of two joint trespassers is no bar to another action against the other for the same tort. The common law imposes upon each joint tort feasor the burden of bearing the entire loss which he, in co-operation with another, has inflicted. The injured person may sue those who co-operated in the commission of the tort together, or he may sue them singly. He may recover against less than all if he sue them jointly, and may have a judgment for unequal sums against all who are joined in the suit. Or, if he sue one such wrongdoer and recover judgment, he is not estopped from suing another upon the same facts unless his first judgment has been fully satisfied. Lovejoy v. Murray, 3 Wall. 1, 18 L. ed. 129; Sessions v. Johnson, 95 U.S. 347, 348 , 24 S. L. ed. 596, 597; The Beaconsfield, 158 U.S. 303 , 39 L. ed. 993, 15 Sup. Ct. Rep. 860. If Lewisohn and Bigelow were severally liable, and a judgment against one, without full satisfaction, was not a bar to a suit against the other, it is difficult to see why a failure to obtain a judgment against one should be an answer to a suit against the other, who was not a party to the first suit. That a failure to recover in one suit against one such tort feasor is not a bar to a suit in the courts of another state against another, who was not a party to the first suit, seems to be supported by considerations of justice and the weight of authority.
But did the Massachusetts court deny full faith and credit to the New York judgment by denying to it the [225 U.S. 111, 133] effect of estoppel which attached to it in the courts of New York, or may it determine for itself, under principles of general law, whether the judgment was a bar to the suit against Bigelow?
The answer must turn upon the construction and effect of the full faith and credit clause of the Constitution, and the act of Congress giving effect thereto. Section 1, article 4 of the Constitution, reads as follows:
The act of Congress of May 26, 1790 [1 Stat. at L. 122, chap. 11], now 905, Revised Statutes (U. S. Comp. Stat. 1901, p. 677) reads as follows:
The effect of this clause is to put the judgment of a court of one state, when sued upon, or pleaded in estoppel, in the courts of another state, upon the plane of a domestic judgment in respect of conclusiveness as to the facts adjudged. But for this provision, such state judgments would stand upon the footing of foreign judg- [225 U.S. 111, 134] ments, which are examinable when sued on in the courts of another country, being only prima facie evidence of the matter adjudged D'Arcy v. Ketchum, 11 How. 165, 175, 13 L. ed. 648, 652. Thus, in Hanley v. Donoghue, 116 U.S. 1, 4 , 29 S. L. ed. 535, 536, 6 Sup. Ct. Rep. 242, it is said:
This requirement of full faith and credit is to be read and interpreted in the light of well-established principles of justice, protected by other constitutional provisions which it was never intended to modify or override.
It is therefore well settled that the courts of one state are not required to regard as conclusive any judgment of the court of another state which had no jurisdiction of the subject or of the parties. D'Arcy v. Ketchum, 11 How. 165, 13 L. ed. 648; Public Works v. Columbia College, 17 Wall. 521, 528, 21 L. ed. 687, 691; Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897; Hanley v. Donoghue, 116 U.S. 1, 4 , 29 S. L. ed. 535, 536, 6 Sup. Ct. Rep. 242; Huntington v. Attrill, 146 U.S. 657, 685 , 36 S. L. ed. 1123, 13 Sup. Ct. Rep. 224; Hall v. Lanning, 91 U.S. 160 , 23 L. ed. 271.
Mr. Justice Story, in his commentaries on the Conflict of Laws, 609, syas:
The general effect of a judgment of a court of one state, when relied upon as an estoppel in the courts of another state, is that which it has, by law or usage, in the courts of the state from which it comes. But the faith and credit to be accorded does not preclude an inquiry into the jurisdiction of the court which pronounced the judgment, or its right to bind the persons against whom the judgment is sought to be enforced.
Referring to the case of Mills v. Duryee, 7 Cranch, 484, 3 L. ed. 413, where the language used was supposed to indicate that the effect to be given to the judgment of one state by the courts of another was in all respects that which attached to domestic judgments, Mr. Justice Bradley, speaking for this court in Thompson v. Whitman, 18 Wall. 457, 462, 21 L. ed. 897, 899, said that Mills v. Duryee had never been departed from 'where the questions raised were not questions of jurisdiction. But where the jurisdiction of the court which rendered the judgment has been assailed, quite a different view has prevailed. Justice Story who pronounced the judgment in Mills v. Duryee, in his commentary on the Constitution, after stating the general doctrine established by that case with regard to the conclusive effect of judgments of one state in every other state, adds: 'But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given to pronounce it, or the right of the state itself to exercise authority over the person or the subject-matter. The Constitution did not mean to confer [ upon the states] a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within their territory."
The conclusiveness of the judgment relied upon in Thompson v. Whitman depended upon the locality of a certain seizure by the authorities of New Jersey under an act regulating the fisheries of that state. The question [225 U.S. 111, 136] was whether a record finding of jurisdictional facts could be contradicted. The holding of the court was that the jurisdiction could be assailed by evidence of facts contradicting those found to exist by the record pleaded as an estoppel. That case has since been accepted as determining that the binding effect of a judgment of one state, when pleaded as an estoppel in the courts of another, is open to challenge by assailing an officer's return of service, or the authority of one who assumed to accept service, or to enter an appearance, even though the judgment includes a finding of the facts necessary to confer jurisdiction. It would seem to follow that the Massachusetts court had the legal right to inquire, not only whether Bigelow was a party to the New York judgment in the sense that he might have appeared and defended, or appealed from it, but whether the cause of action and the relation of Bigelow to it, or to the parties, was such that the New York court could pronounce a judgment which would bind him, or conclude the plaintiff from suing him upon the same facts. Knowles v. Logansport Gaslight & Coke Co. 19 Wall. 58, 22 L. ed. 70; Cooper v. Newell, 173 U.S. 555, 556 , 43 S. L. ed. 808, 19 Sup. Ct. Rep. 506.
Bigelow was a citizen of and domiciled in Massachusetts. He was not found within the state of New York. Indeed, the pleadings in the New York court stated that he was not sued because he did not reside within the state. A judgment rendered upon constructive service against one domiciled within the state may be a good judgment in personam in that state, though void when sued upon outside the state. Pennoyer v. Neff, 95 U.S. 714 , 24 L. ed. 565. In Goldey v. Morning News, 156 U.S. 518 . 521, 39 L. ed. 517, 518, 15 Sup. Ct. Rep. 559, it is said:
See also the thorough discussion of this question in Haddock v. Haddock, 201 U.S. 562, 567 , 573 S., 50 L. ed. 867, 868, 871, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1.
The New York court had no jurisdiction to render a judgment in personam against Bigelow. He was confessedly not a party. He did not voluntarily appear. He had no legal right to appear, no right to introduce evidence, control the proceedings, nor appeal from the judgment. To say that nevertheless the judgment rendered there adverse to the plaintiff in that case may be pleaded by him as a bar to another suit by the same plaintiff upon the same facts, because such is the effect of that judgment by the usage or law of New York, would be to give to the law of New York an extraterritorial effect which would operate as a denial of due process of law. Whatever the effect of that judgment as an estoppel under the law of New York, it cannot be held an estoppel in a suit in the courts of another state between the same plaintiff and a different defendant, who was not a party to the first suit. D'Arcy v. Ketchum, 11 How. 165, 13 L. ed. 648, is clearly in point. Under a New York statute a court of that state entered judgment against a nonresident defendant who was not served and did not appear. The judgment was entered under authority of a statute permitting judgment against joint debtors where only one was notified. The nonresident defendant was sued upon this judgment, perfectly good under the decisions of New York, in the courts of Louisiana. This court, after full consideration, held that the jurisdiction of the New York court to render a personal judgment against a nonresident was open to inquiry, and that it was not to be given the effect it plainly had under the law of New York, because that court had no jurisdiction over the person of the defendant. This [225 U.S. 111, 138] case was followed in Public Works v. Columbia College, 17 Wall. 521, 527, 21 L. ed. 687, 691, which involved the effect of a joint judgment against five persons as joint debtors, two of whom were nonresidents, and were not served and did not appear. This judgment was held not to be evidence against the partners who had not appeared. Touching the effect of that judgment, this court said:
Hall v. Lanning, 91 U.S. 160 , 23 L. ed. 271, was an action in a United States court for the district of Illinois upon a New York judgment against a New York partnership. It appeared that the suit in which the judgment sued upon was obtained was against all the members of a firm, upon a joint liability. The members of the partnership who were residents and were actually served assumed the right to [225 U.S. 111, 139] enter the appearance of certain nonresidents who were not and could not be notified. In the action upon this joint judgment one of the defendants claimed the right to deny the jurisdiction of the New York court to pronounce a judgment against him, upon the ground that he had not been summoned, had not personally appeared, and was not concluded by an appearance entered for him by his copartners, the firm having theretofore been dissolved. The case was distinguishable from D'Arcy v. Ketchum and Public Works v. Columbia College, because the partners actually served assumed authority to enter the appearance of the nonresidents who were not served. The debt sued upon was a partnership debt. The contention was that the relation of partnership conferred upon partners, even after dissolution, the right to appear for their copartners in a suit against the firm. As a question of general law, this court held that although the judgment was valid under the laws and usage of New York, at the common law no such right existed after dissolution, and that the requirement of full faith and credit did not compel the courts of another state to give effect to the judgment as against the nonresident member of the firm who had not been served.
From these cases it is clear that the conclusive effect of a judment in personam, which is to be recognized when questioned in the courts of another state, depends upon whether it is the judgment of a court which had jurisdiction over the person of the defendant sought to be bound. The estoppel here insisted upon is grounded not upon actual notice or appearance, but upon a theory as to the relation between joint tort feasors under the laws of New York. If the Massachusetts court was of opinion that, under the general law, that relationship was not such as to make Bigelow a party by either privity or representation, it was under no obligation to treat the New York judgment as a bar to the suit in which it was pleaded. [225 U.S. 111, 140] The binding effect of the judgment sued upon in Hall v. Lanning, cited above, turned upon the implied power of one member of a dissolved firm to enter the appearance of his nonresident partners in a suit upon a joint debt. Under the decisions of the New York courts such a judgment bound the members whose appearance was so entered. But this court held that full faith and credit was not denied by a determination of the power of one partner to so enter the appearance of a nonresident partner, and held that no such power existed.
In Bagley v. General Fire Extinguisher Co. 212 U.S. 477, 480 , 53 S. L. ed. 605, 613, 29 Sup. Ct. Rep. 341, the facts were these: A tenant recovered judgment against his landlord resulting from the melting of sprinkler heads in an automatic sprinkler put up in plaintiff's building by the defendant. The plaintiff gave the defendant notice to defend, which it ignored. The suit was to recover the money so paid by the landlord. It was claimed that negligence in construction was made out by the judgment rendered against the plaintiff in favor of the tenant in a court of the state of Michigan. That judgment was relied upon as estopping the defendant, who, it was claimed, had notice, and was, under its contract, bound to defend. The court said:
In support of the contention that the full faith and credit clause gives to this judgment the effect, as an estoppel, which would be given to it in New York, counsel have cited the case of Hancock Nat. Bank v. Farnum, 176 U.S. 640, 643 , 44 S. L. ed. 619, 621, 20 Sup. Ct. Rep. 506, where it is said that the 'local effect must be recognized everywhere.' But that was said in respect of a Kansas judgment in favor of a creditor of a Kansas corporation, in a suit by the creditor in another state, against a stockholder of the Kansas corporation, to subject him to liability as a shareholder to an amount equal to his stock. But under the law of Kansas and the general law a stockholder is represented by the corporation in all actions against the corporation for corporate liabilities. The stockholder is, by the very law of corporate existence, an integral part of the corporation, and is bound by a judgment against it in respect of any matter within the scope of corporate powers. See Glenn v. Liggett, 135 U.S. 533 , 34 L. ed. 264, 10 Sup. Ct. Rep. 867; Great Western Teleg. Co. v. Purdy, 162 U.S. 329, 336 , 40 S. L. ed. 986, 990, 16 Sup. Ct. Rep. 810. In the Farnum Case, as in all cases of that class, there is a privity in interest and a representation in law of the stockholder by the corporation of which he is a member. The conclusiveness of such a judgment as binding each stockholder does not, however, extend to matters in which the corporation cannot be said to represent him. Thus it is said in the Farnum Case:
There is no parallel between the relation of joint tort feasors and that of a stockholder to his corporation. In the latter case, the stockholder, by the organic law of his corporation, is a member and represented by it so long as it keeps within its corporate powers. In the other instance one wrongdoer, when sued, does not represent those not sued, although they had cooperated in the wrong and were both liable.
The conclusion we reach is that the Massachusetts court did not deny full faith and credit to the New York judgment, and its decrees are therefore affirmed.
Mr. Justice Hughes took no part in the hearing or consideration of these cases.