mils ,. GRONLUND.
v. GRONLUND et ale
(Circuit Court, S. D. New York. February 10,1890.)
NBW TRUL-REMITTITUR-SEPA1U.TE AMOUNTS AGA.INST JOINT DEFENDANTS.
In an action for joint tort, where the court grants defendants' motion for I\ew trial unless the plaintiff remits a portion of the verdict, the plaintiff cannot have the requirement modified to a remittitur of different sums, according to the proofs against each of the dofendants, and for separate judgments thereon. .
At Law. On motion to modify remittitur. set aside verdict, see ante, 145. Walter M. Rosebault,. for plaintiff. Henry M. Gescheidt, for defendants.
For opinion on motion to
WHEELER, J. Upon the filing of the decision herein granting the defendante'motion for a new trial unless the plaintiff remits to $1,064.32, for roosons stated, the plaintiff moved to have the requirement modified to a remittitur of different snms, according to the proofs against each of the defendants, and for separate judgments thereon, and for lessening the amount of the remittitur so as to allow the verdict to stand for damages for the loss of sales by the plaintiff by reason oithe 1,500 copies sent to Sweden. Lovejoy v. Murray, 3 Wall. 1; Insurance 00. v. Boykin, 12 Wall. 433; Chaffee v. U. S., 18 Wall. 516; Sau'in v. Kenny, 93 U. S. 289; and Sessions v. Johnson, 95 U. S. 347,-are cited in support of the proposition for separate judgments for different amounts. None of these cases is understood to go further than to hold that in actions against several defendants, founded on torts, the verdict may be for some defendants, and against others, according to the evidence. In In8urance Co. v. Boykin, separate judgments, for several different amounts, were rendered; but that was done upon an express stipulation of the parties, and Mr. Justice STRONG appears to have dissented to that. That but one judgment against the defendants in an action at law for a joint tort, and for such damages only as both or all are liable for, can be rendered, seems to be very plain. Any separate liability of one must be sued for separately, or judgment be taken against that one alone. If the plaintiff should file a remittitur of one sum as to one defendant, and of another as to the other, the verdict would be left standing against both for joint damages to the smallest amount left by the remittitur, and against one for the difference between the two amounts. On that, judgment for the smallest amount only could properly be rendered against both. The printing of the 1,500 copies sent to Sweden was, as stated, an unlawful invasion of the plaintiff's copyright. For this the plaintiff was entitled to recover nominal damages, and such further actual damages as he should show resulted; and for it he is entitled to have the verdict stand to such an amount as such damages were shown by adequate proof, and found by the jury. Those sent there would not displace the plaintiff's sales here before they were sent. Those kept by the defendant tl,lllre wouldQot djsplace pll\ointiff's sales anywhere. Those. sold by
FEDERAL' 1UilPQTER), vol.
the defendants there would not displace the plaintiff's sales there, if the damages for that would be recoverable; for he did not sell there. If they were there, and brought here" they might displace sales here. There was no evidence that anysueh Were brought here, except the plaintiff's loss ,of migMqeinJ\lr;fed to arise from, the supply from the defendants coming frOID' there in the hands of iininigrants, or from allowed to those disposed of here. 'For $ll Qftllose losses the That appears to have been the stand by the remittitur before utmost limit to which the plaintiff was entitled to have the jury go, upon the evidence.' This would leave them to find that the entire diminution of the plaintiff's sales, from the time of the appearance ofthe defendants' book, past the commencement of the,$Uit, down to the time of trial, resulted from the books of the defendants disposed of by them before the commencement of the suit. The defendants strenuously insist that this was too mucbrbuHo that wag within the province of thejury. The, findirigof 'so mnch beyond, may be accounted for by failure to give weight to the ,effect of a recovery by the plaintiff of the copies of the de-, fend ants' book in possession of the defendants. If the plaintiff feels that the remitt#ur reqUired to save the:verdict is too large, his right of eryin this action will be left to him if he omits to file it, and lets the verdict he set aside. Motion to modify denied.'
&: . (c.rcwtt aOUert, S. D. MiBiisriwiow, D.
January 17, 1890.)
" An aoo1dent: policy cont.ained theifol1Qwing condition: "This insurance does not cover entering"or trlinlt to enter. or' a moving conveyance using steam as a motive power;!t ., railroad employes excepted." Assured was bap;gage checker of a,transfer. company. ,Hie. business required him to lDeet and .coming and baggage to other railroad lines, and to residences in Vicks. bnrg. Held, assured Wail a railroad employe, within the meaning of the foregoing exception. : . .' ' . , " ' .. . . . " Wbether such an agent is of "VOluntary exposure to unnecessary'danger, It . . in attempting to bOard a lDoving train; is a question of fact for the jury. 8. W A,BRANTY....BoJ>ILT :\:NFIRMIn. . , , The applicM!on for &11 containE!d a w.arranty that the applicant .,. ·'was not possessed of, norsubJeDt W, anybodilylUflrmlty·. The evidence showed that aslilul'ed was near-sighted. ;Held, not & bodU,:inftrmity, within the meaning . of, the warranty. . TheconlUtionil of ail iilsuranoe policy. proViding for forfeitures of thesaIIle, are .to be construeds,trictly against the ,ceiI!ipl1p'y, and liberally in favor of the·assured· .The burden of proof is on the compli.4t to eS'f,ablish the breach of the conditions relied on for 'suoli futfeiture.' (r 'J; .c' , ;: . , , ' . ,
OFPRIU4H1,M-:-EIITol";BL!. .·. . ' . ,.'
L hSUlU.NOB-'AoOIDIl:NT PoLiilY-RAmw.lT
·The pollror,or contained rll-stipulation that "all claims for injuries et· . fected during any period for which itS respective premium 'has not been actually , . paid ' shall· Qe forfeited to the compa,ny." Assured ga,ve. an order on· his emploYer for the preIlllum when the polioy wQ8·1s!lued, payable in four installments, whioh '. was accepted by the agent, and forwarded' to the oompany.' 'l'he oompany failed to