
    123 F. 379
    HOXSIE et al. v. NODINE.
    No. 859.
    Circuit Court of Appeals, Ninth Circuit.
    May 29, 1903.
    
      James E. Fenton, W. T. Hume, Ira D. Orton, and Campbell, Metson & Campbell, for plaintiffs in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge,

after the foregoing statement of facts, delivered the opinion of the court.

The defendants, in offering the papers in the case of "Hoxsie v. Nodine in the so-called “municipal court” at Anvil City, did not offer them as the evidence of an adjudication in a de facto court, nor as the evidence of proceedings in arbitration and award, and the objection to the ruling of the court in admitting the papers in evidence for the sole purpose of reducing damages or rebutting the evidence or inference of malice, gross negligence, or oppression on the part of the defendants, does not distinctly and specifically present the question whether the papers were admissible for the other purpose indicated, and we express no opinion upon that subject.

Among the errors assigned are the refusal of the court to instruct the jury to return a verdict in favor of the defendant Muther, or to grant a nonsuit in his favor, or to dismiss the action as to him, and the instruction of the court to the jury that the defendant Muther was equally liable with the other defendants. The absence of testimony tending to show that the defendant Muther was a joint trespasser in the proceedings against the plaintiff, or that he had any relation to such trespass or proceedings other than as the purchaser of the tent property at public sale, renders the refusal of the court to instruct the jury as requested by the defendant clearly erroneous. As held by the Supreme Court of Oregon in Cooper v. Blair, 14 Or. 255, 12 P. 370, in an action against several for the conversion of property, where it appears that the acts complained of were committed by the defendants severally, at different times, and there is nothing to show any concert or combination between the parties to do the acts charged, no recovery against all the defendants can be had, and a judgment of nonsuit is proper. In support of this doctrine the court quotes approvingly from section 308 of Pomeroy’s Code Remedies, where it is said: “In order, however, that the general rule thus stated should apply, and a union of wrongdoers in one action should be possible, there must be some community in the wrongdoing among the parties who are to be united as codefendants; the injury must in some sense be their joint work. It is not enough that the injured party has on certain grounds a cause of action against one for the physical tort done to himself or his property, and has on entirely different grounds a cause of action against another for the same physical tort. There must be something more than the existence of two separate causes of action for the same act or default to enable him to join the two parties liable in the single action. This principle is of universal application.”

In other words, the plaintiff, having alleged a joint tort, must prove a joint conversion. Dahms v. Sears, 13 Or. 47, 65, 11 P. 891.

It appears to have been the practice at one time in Pennsylvania to permit the joining of two or more defendants between whom there had been no concert of action, and under the allegation of a joint tort prove the separate torts of each defendant, leaving the court and jury to select the party legally responsible. But the rule no longer prevails in that state. Minnich v. Electric Railway Co., 203 Pa. 632, 53 A. 501.. Assuming, however, that there was testimony tending to establish a joint liability on the part of all of the defendants, it was for the jury, and not the court, to pass upon the testimony and determine that fact; and the court, in taking that question from the jury and giving the instructions that the defendants were all jointly liable, committed palpable error. The same observation is applicable to the instruction concerning the liability of the defendants to exemplary or punitive damages. The instruction left the jury to infer that if they found malice, oppression, or gross negligence on the part of any one of the defendants in the commission of the alleged trespass, they were all jointly liable in punitive or exemplary damages. With respect to the defendant Muther there was not, as before stated, a particle of evidence tending to show that he had any other relation to the proceedings against the plaintiff than as a purchaser of the property at a public sale. Before the sale he had in no way participated in the acts of Hoxsie and Eddy, and his purchase did not of itself make him a participant in the wrongful seizure, and he cannot be made a trespasser by relation. Gloss v. Black, 91 Pa. 418. Moreover, he offered to return the property to the plaintiff immediately after the purchase. If the jury believed his testimony in this regard, he thus relieved himself from any possible charge of malice, oppression, or gross negligence. But this question was not submitted to the jury. The court drew no distinction in law between the acts of the several defendants and their liability for actual and exemplary or punitive damages.

The judgment is reversed, with instructions to the court below to grant a new trial.  