258 F. 829 | 8th Cir. | 1919
Lead Opinion
(after stating the facts as above). The record is very voluminous, covering over 3,400 printed pages. There are 184 assignments of error, but counsel in their briefs and oral arguments only insisted upon those hereinafter mentioned, and we will therefore confine this opinion to those assignments and in the order presented by counsel.
This question was determined by this court on the former hearing, sub nomine Dowd v. United Mine Workers of America, 235 Fed. 1, 148 C. C. A. 495, and it was there held that under the Sherman AntiTrust Act these unincorporated unions may be sued by one injured in his business or property by reason of anything done which is forbidden by the Sherman Act. That decision is the law of the case, and cannot riow be again reviewed. In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414; National Bank of Commerce v. United States, 224 Fed. 679, 140 C. C. A. 219; Continental, etc., Bank v. North Platte Valley Irrigation District, 237 Fed. 188, 150 C. C. A. 334; Griggs v. Nadeau, 250 Fed. 781, 163 C. C. A. 113.
In order to understand the issues involved in this motion, it is proper to state that the complaint alleges, that the nine corporations, for which the plaintiffs as receivers sued, were under the control of the same persons, who owned all the shares of stock of all nine corporations and all were operated as one, eight of them being subsidiaries of the Bache-Denman Coal Company; that by reason of these facts, the destruction by the defendants of the property of said corporations, they sustained the losses jointly; that by reason of the unlawful acts of the defendants the plaintiffs were prevented from operating any of the mines, they being in close proximity in tire Prairie Creek valley, in Sebastian county, Ark. It is further alleged that the receivers were appointed by the District Court by a single decree, in one action.
That under the Code of Practice of the state of Arkansas, in which state the wrongs were committed and this cause tried, it was proper to join all the plaintiffs’ causes of action, all of them arising out of the same torts, committed by the same persons, at the same time, and in pursuance of the same alleged conspiracy, has been determined by the Supreme Court of the state ever since the enactment of Act May
In Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599, 603, 35 Sup. Ct. 844, 59 L. Ed. 1478, an action arising under the national Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]), the plaintiff joined two distinct and separate actions caused by the same act of negligence, one to recover damages for the benefit of the estate of the deceased, and the other for the pecuniary loss of the next of kin. There was a verdict in favor of the plaintiff for a lump sum on both causes of action, without any apportionment to the different beneficiaries.' This was made one of the assignments of error. Notwithstanding that in Gulf, Colorado, etc., Ry. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785, it had been held that “Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return”- — the judgment entered on the verdict of the jury without apportionment was upheld, the court holding:
“As the challenged verdict seems in harmony with local practice and has been approved by the court below [referring to the Supreme Court of Arkansas], the judgment thereon is not open to attack here upon the ground specified.”
“Where the English consolidation rule has not been adopted, the American courts, state and federal, have exercised the authority of ordering several actions by one plaintiff against different defendants to be tried together, whenever the defense is the same and unnecessary delay and expense will be thereby avoided.”
The court then proceeded:
“But although the defendants might lawfully be compelled, at the discretion of the court, to try the cases together, the causes of action remain distinct, and required separate verdicts and judgments; and no defendant could be deprived, without its consent, of any right material to its defense, whether by way of challenge of jurors, or of objection to evidence, to which it would have been entitled if the cases had been tried separately.”
In the instant case there was no consolidation of actions, but assuming, without deciding, that the same rule applies to actions orig
If the petitions for the books and documents had failed to specify what books and documents were wanted, or did not make a sufficient showing of their materiality, so that the object was merely an attempt to obtain information, it would have been error to grant the petitions. United States v. Terminal Railway Association (C. C.) 154 Fed. 268, 272, and authorities cited. But each of the petitions set out and described the documents wanted, and the reasons for their materiality. All except the first petition were against the defendants as officers of the organization, to produce books and documents in their possession as such officials, which it was alleged were records of -their organization. The first petition- included them as officers and • individuals, but this petition was denied. Section 262, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162), which is a re-enactment of section 716, Rev. Stat. (Comp. St. § 1239), authorizes such an order. It was so held in American Lithographic Co. v. Werckmeister, 221 U. S. 603, 609, 31 Sup. Ct. 676, 55 L. Ed. 873. As the orders to produce them were limited to the parties as officials of the United Mine Workers of America, and not as individuals, the claim that the orders were in violation of the Fourth and Fifth Amendments to the Constitution must also fail. Hale v. Henkel, 201 U. S. 43, 69, 26 Sup. Ct. 370, 50 L. Ed. 652; Wilson v. United States, 221 U. S. 361, 31 Sup. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Wheeler v. United States, 226 U. S. 478, 33 Sup. Ct. 158, 57 L. Ed. 309.
To determine this assignment of error it is necessary to refer to the allegations of the complaint. The complaint, except for some amendments, which are not of sufficient materiality to this issue to require that they be set forth, will be found in a note to the former opinion of this court in 235 Fed. 9, 148 C. C. A. 495.
The last amendment to paragraph 21 gives the names of 231 op-orators, who had entered into an agreement with the United Mine Workers of America to employ only union miners and conform to the rules of the unions. These were furnished by the plaintiffs in pursuance of1 an order of the court, made on motion of the defendants. That motion, among other requests, asked that plaintiffs “state the names of the persons acting or assuming to act for the operators, referred to in said paragraph and amendments thereto.” The main objection to the introduction in evidence of these records was “that no proper foundation for their introduction had been laid.” The testimony shows that the proceedings of these conferences were taken down stenographically, copies furnished to the United Mine Workers of America, and by it caused to be printed and kept in its archives under the control of its secretary. Before they were introduced in evidence, Mr. Green, the secretary of the United Mine Workers’ organization, testified that the printed reports were “verbatim reports of the arguments, discussions, and propositions of what took place at these conferences, and that the association caused them to be printed, and the printed volumes produced were the ones that came back from the printer.” A number of representatives of the operators, and several high officials of the United Mine Workers of America, also testified orally to what took place at these meetings, and all agreed with Mr. Green, the secretary, that these printed records were correct transcripts of the proceedings of the conferences. As the testimony of the officials of the miners’ organization, as well as of the operators, who attended these conferences, verified the correctness of the printed records introduced, how can it be claimed that there was no foundation for the admission in evidence of these records ? St. Louis & San Francisco R. R. v. Duke, 192 Fed. 306, 309, 112 C. C. A. 564; Portland Gold Mining Co. v. Flaherty, 111 Fed. 312, 49 C. C. A. 361; Wilhite v. Houston, 200 Fed. 390, 393, 118 C. C. A. 542. The objection to their introduction for want of a proper foundation is without merit.
The records establish that these conferences between the United Mine Workers and coal operators, who employed only union labor, were held for the purpose of protecting these operators against competition from nonunion or independent operators, who were able to produce coal cheaper, owing to the fact that they had the 10-hour workday, while in the mines operated by union labor the 8-hour workday was in force; that the independent operators were not subject to the strict regulations prescribed by the Mine Workers’ union, nor did they pay as high wages to the miners. To protect these op
“wipe out competition between us as miners — first, viewing it from our side of the question; next, for the purpose of wiping out competition as between the operators in these four states. When we have succeeded in that, and we have perfected an organization on both sides of the question, then, if I understand the real purpose of this movement, it is that we will jointly declare war on every man outside of this competitive field who will do anything in any way endangering the peace that exists between us. What is necessary to do this? Organize our forces in the competing fields, so far as the United Mine Workers are concerned. Go into these outside competing fields and tell your competitors that they have to join this movement, whether they like it or not, and give stability to the coal business of the United States.”
In the 1902 joint conference, Mr. Robbins, speaking for the operators, complained of defendants, saying:
“Four years ago, in the city of Chicago, we agreed to be the advance guard on the question of an 8-hour day, with the distinct and absolute promise that unless our competitors were brought up to the same conditions that we would be put back where we were. And what is the result? None of our competitors have been brought up. In no place that we compete, that I know of, has the 8-hour day been established. We are competing constantly with operators that still have a 10-hour day. Their cost is proportionately less.”
When the miners’ convention met that year, the following resolution was adopted in order to carry out the pledges made to the operators :
Resolution 33: “Whereas, the miners of Virginia and Kentucky in the past have been a detriment to the organization in other states by their not being organized: therefore be it resolved, that our national organization.shall use its power in all forms to bring these miners into the organization.”
In the convention of the Mine Workers in 1904 the following resolution, introduced by a representative of a local union from district 21 (Arkansas, Oklahoma, and Texas) was adopted:
“Resolved, that in strict compliance with our obligations and teaching, we accord a hearty approval to our national board on its action in regard to district No. 15 strike, now on, in Colorado, and whatever action taken by the national that in their judgment is necessary to the successful ending, in the elevation of the craft in district No. 15, meets our entire approval, for which we pledge our unqualified support, as our knowledge of the field of Southern Colorado, in the event of an unsuccessful issue of the trouble now pending, would work almost unsurmountable and incalculable damage to district No. 21, as it would be an unjust competitor in the' same commercial field, and could with very little effort undersell and supersede us in the Oklahoma and Southwestern Kansas markets.”
Without setting out in full all the agreements between the miners and the union operators, and the resolutions of the miners at their conventions, for the purpose, of carrying out these agreements, it clearly appears from these records that the United Mine Workers were pledged and determined to unionize all coal mines in the nonunion districts, for the purpose of protecting the operators in the .district in which the mines had been unionized, in competitive mar
“It Is the official publication of the organization, published by authority and under the supervision of the Internationa] Executive Board of the United Mine Workers of America; that its editor is appointed by the president of the International Union.”
Therefore the editorials, which were published in almost every issue of the Journal, must be deemed the acts of the organization. They were clearly admissible. As the action is one for conspiracy, the law permits great latitude in the introduction of evidence tending to establish the conspiracy and connecting those advising, encouraging, aiding, abetting, and ratifying the overt acts committed for the purpose of carrying into effect the objects of the conspiracy.
The main issue in this cause, so far as the national organization and its officers were concerned, was whether the torts committed by some of the defendants were in pursuance of an unlawful conspiracy to compel the plaintiffs and other coal mine operators to unionize their mines, and were authorized, encouraged, advised, and, if not authorized, ratified by the national organization and its officers, after they had been committed. The court did not-err in admitting these journals in evidence. Clune v. United States, 159 U. S. 590, 593, 16 Sup. Ct. 125, 40 L. Ed. 269; Hitchman Coal Co. v. Mitchell, 245 U. S. 229, 249, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Louie v. United States, 218 Fed. 36, 41, 134 C. C. A. A. 58.
[9 ] That corporations, and this association must be treated as such in this action, are liable for the torts of their members or employes, when encouraged in the commission of them, or if ratified thereafter, is well settled. Philadelphia, etc., R. R. v. Quigley, 62 U. S. (21 How.) 202, 16 L. Ed. 73; Denver, etc., Ry. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146; Stewart v. Wright, 147 Fed. 321, 327, 77 C. C. A. 499. Nor does the doctrine of ultra vires apply. National Bank v. Graham, 100 U. S. 699, 25 L. Ed. 750; Chesapeake & Ohio Ry. v. Howard, 178 U. S. 153, 160, 20 Sup. Ct. 880, 44 L. Ed. 1015.
“The plain effect of this action was to approve a policy which, as applied to the concrete case, meant that, in order to relieve the union miners of Ohio, Indiana, and Illinois from the competition of the cheaper product of the nonunion mines of West Virginia, the West Virginia mines should be ‘organized’ by means of strikes local to West Virginia, the strike benefits to be paid by assessments upon the union miners in the other states mentioned, while they remained at work.”
8. What has been said heretofore as to the admissibility of the records of the joint conferences applies also to the records of the meetings of the Executive Board of the United Mine Workers of America.
It is contended that the evidence fails to establish a conspiracy in violation of the Sherman Act, which is the gist of the action, and therefore it is claimed there can be no recovery in this action. A great deal of the testimony, relating to the organization of the.Mine Workers, their acts to accomplish the object of absolute control of all coal mines, is almost identical with that set out in the opinion of the District Judge in Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512, to which reference is made, in order to shorten this' opinion.
The evidence, to our minds, as it was in the opinion of the learned trial judge and the jury, established the conspiracy practically beyond question. It is much stronger than that in the Hitchman Coal & Coke Co. Case. To review it fully, covering as it does over 3,000 pages of the printed record, would only tend to prolong this opinion, and serve no useful purpose. The law requires that, in order to entitle defendants to such a direction, the court must give the evidence the strongest probative effect, and view it in the light most favorable to the plaintiffs, and, if there is any substantial evidence to sustain the allegations in the complaint, a peremptory instruction must be refused. This is too well settled to require the citation of authorities. A careful reading of the evidence satisfies that it fully sustains the conclusions of the learned trial judge on these motions. There was substantial evidence to warrant a finding of the following facts:
That there was concerted action on the part of the union miners of district No. 21, with the union miners of the entire national organization and the heads of that organization, tending to demonstrate the idea and motive entertained by the entire organization, and all the members of it, that it was necessary, in order to protect the union workers in the fields already unionized, to unionize the nonunion fields, as well as to hold all those which were already unionized.
To attain the objects of the United Mine Workers, to control the mining of coal in the United States, it was deemed to be necessary that they may be in a position to enforce their demands absolutely, secure the unionization of all fields, prevent the production of nonunion mined coal, and destroy the competition of nonunion-mined coal in the markets of the country with union-mined coal. •
That the national organization is composed of all of the individual members of the local unions, and by its constitution it is divided into branches, district and local, all subordinate to the national organiza
That while the constitution gives to the district organization the power and authority to authorize strikes under certain conditions, it does not delegate exclusive authority to these district officers. They may order a local strike, but in view of other provisions in the constitution and in the light of the record of the doings of the Executive Board of the national organization, in exercising absolute control over the different districts, this provision seems to be only-permissive, and was never intended to taire the absolute control from the International Executive Board. The national board, after the local strike was ordered, had the right to supervise and absolutely control the same, and had the right to discipline to the extent of absolutely taking the charter away from the offending members in the event tire orders of such national board were not complied with.
Article XII, section 2, of the constitution of the national organization, provides:
“Before final action is taken by the district upon questions that * * * may require a strike, * * * the president and secretary of the aggrieved district shall jointly prepáre, sign, and forward to the national president a statement setting forth the grievance complained of, the action contemplated by the district, together with the reasons therefor, and await the decision of the national president and be governed thereby.”
The national organization has, undoubtedly, under the constitution, supreme authority. The judgment, discretion, wisdom, and power of the entire organization are vested in the national organization; every member of a local union is a member of the national organization and a contributor to its funds.
That prior to April 6, 1914, when mob violence was first resorted to against plaintiffs’ mines, communications were had, by telegrams, between officers of the district and members of the local organizations, that employés of the plaintiffs were on that day and until the» final destruction of the property, beaten into insensibility, and that it was all done in the name, at least, of the United Mine Workers of America.
There was evidence that the national officers and officers of the district organization knew what was being done from April 6, 1914, to the day of the destruction of the plaintiffs’ property on July 17, 1914, and that no effort was made to stop these unlawful acts of violence by the national organization.
It is established beyond question that the property of the plaintiffs was burned and their mines destroyed in the course of the strike, for the purpose of carrying out the aims, objects, and purposes of the national organization, and its objects were thereby attained to the extent of the elimination of the nonunion mines of these plaintiffs by the destruction of their property, and thereby kept nonunion coal, produced and intended to be produced from these mines, out of interstate commerce. There was not a word of criticism by the United Mine Workers of America — no suggestion of discipline; on the oth
As to the motion of the other defendants for a directed verdict, rliere was also substantial evidence tending to establish that on Saturday, April 4th, when plaintiffs’ mines were opened as "nonunion” or “open shop” mines, a number of the union miners congregated at the mines, some of them attempting to get inside the inclosure. On the next day, Sunday, some minor disturbances occurred, throwing of rocks toward the houses where the nonunion employes lived, and calling them opprobrious names. A few days before the opening of the mines, with nonunion employés, Mb*. Reed, a member of the union, approached Mr. Argo, a bookkeeper of the plaintiffs’, and asked him if the company was going to run an open shop. He then stated “that if they did they would not last longer than Pat stayed in the army.” On that Sunday a meeting of the union miners was held at Hartford, and storekeepers there were told to close their stores the next day and go to Prairie Creek for the demonstration to be held there to prevent the opening of the mines with nonunion labor.
On Monday, April 6th, large crowds of union miners and sympathizers met in front of the union hall of the Prairie Creek local union, about a quarter of a mile from the office of the Prairie Creek mine No. 4, where speeches were made by some of the miners, and a committee appointed, which called on the mine superintendent and asked that the company abandon its attempt to run it as nonunion, one of the committee telling him, “if they didn’t want a repetition of Colorado.” Meanwhile the crowd, which had accompanied the committee, had broken over the ropes of the inclosure and assaulted two of the guards so seriously that they had to be taken to the hospital at Ft. Smith.
To prevent further trouble the mine was closed, and thereupon the miners hoisted an American flag, and alongside of it a banner bearing the words: “This is a union man’s country.” The nonunion miners were afraid to come out of the mine. Some of the union men then went in, pulled the fires, and assaulted and injured a number of the men. A physician, a sympathizer with the union miners, was with the strikers, but refused to treat the serious wounds inflicted on one of the nonunion men. On the next day the bookkeeper was visited at his home and warned that unless he and his wife left they would be killed. Two weeks later he was assaulted and beaten by the financial secretary of the local union.
A temporary injunction against the strikers was obtained, but in spite of that the employés of the plaintiffs were threatened and at various times assaulted. In May the temporary injunction was made permanent by the court. In that month the convention of district No. 21 was held at Ft. Smith, which was attended by the district officers, and also the defendant John P. White, president of the United Mine Workers of America. A few days later Dan Wilcox, president of the local union, at Adamson, Okl., told J. A. Murry that the miners of Oklahoma “were going to come down to Prairie Creek and clean those scabs out.” The latter part of June the secretary-treasurer
“Damn the .injunction! The national government is against us, but the people are with us, and we are going to win.”
Some of those working in the mines were told by members of the union, a few days before July 17th, that they had better stay out, as there was going to be trouble. Others of the employés were also warned to the same effect. Residents of Frogtown, about half a mile from the Prairie Creek mines, where many of the union miners lived, were warned by them to leave the village on July 17th, as there would be trouble, and a large number of them left. On that day meetings of the miners were held at Hartford and at Bolen Pond. The union miners, employed in the union mines in the vicinity, did not report' for work on that day. About midnight of the night of the 16th, all the lights at the mine went out, and about 4 o’clock a. m. a number of men fired shots into the company’s property. At 7 o’clock a. m. they surrounded the mining camp, took possession of No. 3 tipple, and blew it up with dynamite. There was a regular battle then fought between the company’s employés and the union men: They then set fire to several houses, burned some loaded cars, and destroyed the property, as alleged in the complaint. In October another attempt was made to open the mines under the protection of the court, and they were again attacked and the workmen driven off.
The learned counsel for defendants neither in their voluminous brief (326 printed pages) nor in their oral argument questioned these statements of facts, nor did they seriously attack the sufficiency of the evidence, but they insist that they do not establish that the plaintiffs were engaged in interstate commerce, and therefore these acts were not in violation of the Sherman Act. The leading case relied on is United States v. Knight, 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325, but this case, if not expressly overruled, has been much weakened by the later decisions of the Supreme Court, and it was so held by this court when the case was here before. 235 Fed. 1, 8, 148 C. C. A. 495. As this court, when this case was here before, held that the alleged wrongs and torts of the defendants charged in the complaint, and which at the trial were established by substantial evidence, constituted an interference with interstate commerce, and violated the Sherman Act, that opinion is the law of the case, and cannot again be re-examined.
' 12. It is also contended that, while the constitution of the union authorizes strikes, it does not authorize unlawful acts, such as the destruction of property, and that strikes are not unlawful. The trial
There were only two exceptions taken to the charge of the court. These were:
(3) “The defendants separately except to the instruction which submits _to the jury the question that the United Mine Workers of America, in its entire membership, can be held responsible for the conduct of a local strike when violence is used without showing that the entire membership participated in the wrongful acts, and without full knowledge of the same ratified such wrongful conduct before the institution of this suit.”
(2) “And the defendants severally except to that part of the court’s chai’ge which submits to the jury the question that the controversy between the miners and the plaintiffs in question was under the control of the International Association and its officers, and that they were charged with the duty of preventing violence and with the responsibility of any violence that occurred or any wrongful acts that were committed.”
The first exception was not, and could not well be, insisted on. It is unnecessary that each and every member of an organization engaged in an unlawful conspiracy must participate in the wrongful acts committed by some of the conspirators. The act of one, in carrying out the objects of the conspiracy, is the act of all the conspirators.
The second exception has no basis whatever to rest on, as nothing in the charge of the court was to that effect.
13. The next contention is that the court erred in refusing to give the special requests for instructions asked in behalf of the defendants.
Counsel in their brief include under one head a number of assignments, 150 to 176, inclusive. They are instructions which requested directed verdicts in favor of each of the defendants. We have here-inbefore held that the court did not err in refusing to direct a verdict for any of the defendants. It is therefore unnecessary to repeat what has been said.
As to the first additional charge, when the jury came into court for additional instructions, it is sufficient to state that no exception was taken to any part of that additional charge.
When the jury was recalled by the court on the second day, the court expressed its opinion as to the evidence, and said, in effect, that in its opinion the plaintiffs had made out a case entitling them lo a verdict, but added:
“Now, that is the judgment of this court, and if it were my duty to decide it, I would decide it here. Now, you are not bound by my opinion. I have a right to give you my judgment; however, you are the sole and exclusive judges of (he facts, and it is for you to determine these issues of fact independent of my judgment, and this court believes you ought to determine it, and under your oaths as jurors and agree upon a verdict.”
“Mr. Grant: May I take an exception to that part of the charge with reference to the great conspiracy, and also that part which is to the effect that the organization put that in force?
“The Court: Yes, sir; in the opinion of the court you are entitled to your exception.
“Mr. Grant:' I just desire to get an exception.
“The Court: The exception is allowed.”
Counsel now, not only ask that that part of the charge which was excepted to be reviewed, but ask us to review the entire supplemental charge, because they say: First, that it amounted “to a peremptory instruction to return a verdict against the defendants,” and, second, that “the opinion regarding the facts of the case, which the court formed and expressed to the jury, was an erroneous one.”
As to the first contention, the Supreme Court, in Allis v. United States, 155 U. S. 117, 122, 15 Sup. Ct. 36, 38 (39 L. Ed. 91), said:
“There is no intimation in the exception that the defendant at the time thought that the court was trying to coerce the jury, or suggested that its language might have such an influence upon them. Evidently the claim of coercion is an afterthought, from subsequent study of the record. But it is settled that no such afterthought justifies a reviewing court in reversing a judgment.”
This was in a criminal case, in which the defendant had been convicted of an infamous crime.
In Robinson & Co. v. Belt, 187 U. S. 41, 50, 23 Sup. Ct. 16, 19 (47 L. Ed. 65), it was held:
“While it is the duty of this court to review the action of subordinate courts, justice to those courts requires that their alleged errors should be called directly to their attention, and that their action should not be reversed upon questions which the astuteness of counsel in this court has evolved from the record.”
The same rule has been followed by this court in many cases. Lesser Cotton Co. v. St. L., I. M. & S. Ry., 114 Fed. 133, 52 C. C. A. 95; Beiseker v. Moore, 174 Fed. 368, 373, 98 C. C. A. 272; Maynard v. Reynolds, 251 Fed. 784, 786, 164 C. C. A. 18.
“In the courts of the United States, as in those of England, from which our practice is derived, the judge, in submitting the case to the jury, may at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, and call their attention to the parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error.”
Other cases to the same effect are United States v. Reading R. R., 123 U. S. 113, 114, 8 Sup. Ct. 77, 31 L. Ed. 138; Doyle v. Union
The court in its general charge said:
“In trials of this character, like ail civil actions, the exclusive province of the jury is to pass upon the facts, and determine the issues of fact that are presented by the pleadings.”
In the supplemental charge, of which the defendants now complain, the court told the jury:
“Now, you are not bound by my opinion. I have a right to give you my judgment; however, you are the solo and exclusive judges of the facts, and it is for you to determine those issues of fact independent of my judgment.”
In our opinion this charge clearly and forcibly submitted every material fact which had arisen during the trial, and neither peremptorily nor otherwise coerced or directed a verdict in favor of either party. Suslak v. United States, 213 Fed. 913, 919, 130 C. C. A. 391.
Turning to the only question covered by the exceptions, to wit, the opinion which the court expressed to the jury in the supplemental charge, with reference to the great conspiracy, and also that part which is to the effect that the organization put that in force, is also untenable. First, there was no error in the court’s charge upon the subject, because he merely expressed his opinion on the evidence, the facts and the effect of the evidence, and he told the jury that his opinion was not binding upon them; so it necessarily follows that, even if it was a mistaken opinion, it was not error, under the rule of practice in the national courts, to express his opinion of the evidence. As stated here-inbefore, there is a vast volume of substantial evidence tending to sustain his views.
“We, the jury find the issues in favor of the plaintiffs and against the defendants, and assess plaintiffs’ actual damages at $200,000.00”
—and not requiring the jury to find the separate damages sustained by the several plaintiffs. The exception taken to the verdict was:
“Mr. Grant: I would like to except to the form of the verdict, for the reason that, as we understand it, the verdict of the jury should apportion the damages.”
The exception does not specify whether counsel wanted the damages apportioned among the plaintiffs or the defendants. If it was intended to have the apportionment between the defendants, it was dearly without merit. Washington Gaslight Co. v. Lansden, 172 U. S. 534, 552, 19 Sup. Ct. 296, 303 (43 L. Ed. 543), where it was held that—
"Those of the wrongdoers who are sued together and found guilty in an action of tort are liable for the whole injury to plaintiff, without examining*846 the question of the different degrees of culpability. And if but one is sued, he is liable for all the damages inflicted by the most culpable.”
If it was intended to have the apportionment of the damages awarded to the plaintiffs, the request should have been made to that effect, in order that the court may have its attention called thereto. But, assuming that the exception was intended to have the apportionment of the damages to each of the corporations represented by the receivers, without requesting it in plain language, the exception cannot be sustained. There is no complaint that the verdict is excessive; therefore, it may well be asked, how are the defendants prejudiced? As stated in Kansas City Southern Ry. v. Leslie, 112 Ark. 305, 332, 167 S. W. 83, 93 (Ann. Cas. 1915B, 834):
“Appellant, at the time the verdict was rendered, made no objection to its form. He did not ask that the jury be required to return separate amounts for pain, and suffering, and for loss of contributions. The widow and child, under the law, were entitled to the entire amount. They were the only persons having a pecuniary interest in tire amount of damages recovered, and it could not prejudice appellant because these damages were returned in a lump sum. Appellant will be protected in the payment of the judgment as rendered, since all of the parties who had an interest in the same are represented in the suit.” •
This was approved by the Supreme Court. 238 U. S. loc. cit. 604, 35 Sup. Ct. 844, 59 L. Ed. 1478. It may be that the rule would have been different if there had been separate actions by each of the corporations, claiming different amounts, and these actions had been consolidated. But there was only one action for one gross sum.
The motion of plaintiffs for interest was filed 4 days after the verdict had been returned and judgment entered thereon, and the order of the court correcting the judgment, which had been entered on the verdict of the. jury, was made 11 months after the entry of the judgment. This, in our opinion, was error. The allowance of interest in actions of tort is discretionary with the jury. In Eddy v. La Fayette, 49 Fed. 807, 1 C. C. A. 441, this court held .that an instruction on the measure of damages, in an action for a tort by a railway in negligently setting fire to property, to award interest, was error. The Supreme Court, in affirming the judgment (163 U. S -. 456, 467, 16 Sup. Ct. 1082, 1086, 41 L. Ed. 225), said:
“Undoubtedly the rule, in cases of tort, is to leave the question of interest as damages to the discretion of the jury.”
Other cases in point are Lincoln v. Claflin, 74 U. S. (7 Wall.) 132, 139, 19 L. Ed. 106; The Scotland, 118 U. S. 507, 6 Sup. Ct. 1174, 30 L. Ed. 153; De La Rama v. De La Rama, 241 U. S. 154, 159, 36 Sup. Ct. 518, 60 L. Ed. 932, Ann. Cas. 1917C, 411; District of Columbia v. Robinson, 180 U. S. 92, 107, 21 Sup. Ct. 283, 45 L. Ed. 440; Arnold v. Horrigan, 238 Fed. 39, 47, 151 C. C. A. 115. And this is the settled rule established by the Supreme Court of the state of
Thomsen v. Cayser, 243 U. S. 66, 37 Sup. Ct. 353, 61 L. Ed. 597, Ann. Cas. 1917D, 322, relied on by defendants, is not in point. In that case the jury, by its verdict, allowed interest, but failed to compute it. The verdict of the jury was “for the plaintiff in the sum of fifty-six hundred dollars, with interest.” Interest having been awarded by the jury, the computation was merely ministerial. Cooper v. Hill, 94 Fed. 582, 36 C. C. A. 402, was an action in equity, and the chancellor in his discretion allowed interest, as the jury may have done in this case, but refused to do so. None of the authorities cited by counsel sustains the contention that in an action for a tort the court may allow interest, when the jury had failed to do so. In equity and admiralty, the court, in assessing the damages, acts as a jury, and therefore such cases are not in point.
As the amount allowed for interest is fixed, this error may be corrected without remanding the case-for a new trial, by permitting the defendants in error to enter a remittitur for that sum. As this is the only error in this cause, defendants in error will be permitted to file a remittitur in the court below, within 40 days from the filing of this opinion, for the interest allowed, and upon filing a certified copy of such remittitur with the clerk of this court the same will be affirmed; otherwise, it will be reversed, with instructions to grant a new trial.
Dissenting Opinion
(dissenting). After the jury had deliberated without result for about two days, the trial court of its own motion recalled and charged them in a way that soon produced the verdict. Farts of this charge will be presently set forth. Having in mind the constitutional relations between court and jury, and their practical relations as well, I cannot escape the conviction that the language employed by the court was so forcible that it virtually coerced the verdict. That should never occur where the state of the evidence requires its submission to a jury, however unequal in weight the court may regard it. The power of a court to comment upon the evidence and to assist a jury in performing their duties is one of the most valuable features of the practice in the courts of the United States, and its exercise almost always makes for right and justice. But, however strongly a court may feel in a case that should properly go to the jury, the power to comment and assist them is not a power to direct a verdict, and the distinction should always be observed. Words often take compelling force from the authority of him who utters them; and when he rnay, but should not, command, he must be most careful with advice. The Supreme Court has said:
*848 “It is obvious that under’any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his .lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U. S. 614, 626, 14 Sup. Ct. 919, 923 (38 L. Ed. 841).
And upon the same subject this court said:
“But his comments upon the facts should be judicial and dispassionate, and so carefully guarded that the jurors, who are the triers of them, may be left free to exercise their independent judgment.” Rudd v. United States, 97 C. C. A. 462, 173 Fed. 912.
It should be borne in mind that the trial court did not regard the case at bar as one for a directed verdict against the defendants, nor do my Brothers hold differently in the foregding opinion.. It was a case for the jury, and if in effect the verdict was directed by the court, error was necessarily committed.
In the foregoing opinion the exceptions to the charge are held insufficient to raise this question. The exceptions might have been more specific, but I think the intention of counsel was sufficiently evident, and that the trial court understood it. But whether this is so or not is not now decisive of our duty. A recent amendment of section 269 of the Judicial Code, approved February 26, 1919 (40 Stat. 1181, c. 48), provides:
“On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after un examination of the entire record before the court, without regard to technical errors, defects, cr exceptions which do not affect the substantial rights of the parties.”
The matter under discussion was of vital importance and is well within the above provision. It was not an inadvertence or casual ruling in the progress of the trial, to which specific objection or exception was necessary to inform the court and give it opportunity for correction, but it was a deliberate action, going to the very root of the judgment now under review. In view of the above I will now set forth parts of the charge, the italics being mine:
“I want to say to you ■that the court has no thought at all oí discharging you. You were sworn upon your oaths to do your duty as jurors. Ini the opinion of the court there is no reason on earth why reasonable men, with a due regard for right, and each having due respect and consideration for the other’s opinion, should not arrive at a conclusion in this case. What would be a fortune to either of you, or [to me], has already been spent and a failure to render justice in this and other [cases] is what brings the courts into com tempt. * * * And you are advised that this court is of the opinion that, the facts in this case justify you in the conclusion overwhelmingly that it was the policy, and therefore the agreement, for years of this national organization to prevent mining of nonunion coal for the unlawful purposes named in this complaint that it might-not come into competition with union-mined coal; that there is no question i/n.this court’s mind but that that strike was- ordered down there for that purpose to prevent the .mining of nonunion coal in these plaintiffs’ mines; that the strike was called by those who were the instrumentality of the greater organization, the general organization, the defendants, and their act was its act, and that they put into motion the force that destroyed this property. * * * Why, this court has not ■ a thought that there would- ever have been any trouble there if it had not been for the prevention of the mining of nonunion coal. Notv, that is the judgment of this court,*849 and if it were my duty to decide it I would decide it here. * * * If there is any question about the law on the responsibility for this, responsibility of the greater organization, that is for the higher court to say; but you cannot reach it until you have done your duty — you are the slumbUng block in the way and this whole time is wasted. Now, after 1 have said what I have, I am going to say that I have no thought of discharging you; you must return a verdict in this case.”
Of course, the court said it was for the jury to determine the facts, and that they were not bound by its opinion, etc.; but are not such expressions wholly futile in the compelling force of the above? There are occasions in which the statement of a principle of law is but an academic formula. Can it reasonably be said, after such a charge, that the jury felt free to exercise their own independent judgment? The question whether the well-established province of a jury is invaded is to be judged by the natural effect of the charge upon the minds of the jurors. How did they feel about it? Did they feel free to exercise their functions independently, or were they constrained by the intrusion of the personality and power of the judge, and the fear of his displeasure, ridicule, or contempt? In this case they were reminded of their oaths; they were told that they would not be discharged, but had to return a verdict; that there was no reason on earth why they should not agree; that failure to render justice would bring the court into contempt; that there was no question in the mind of the court about the evidence; that it was overwhelmingly one way, meaning against the defendants; and that they were a stumbling block in the way of the final determination of the legal responsibility for the acts charged. It is regrettable that this incident occurred, for up until that time the case was most admirably and carefully tried.
In my opinion the judgment should be reversed.
