with, or direction of, this defendant; that "to the best of deponent's knowledge" Mr. Goshorn participated in that trial at the request of DesLauriers' attorneys and acted as an attorney for that company under an arrangement with it, "the details of which are unknown to your deponent"; that defendant has not paid Mr. Goshorn for his services in that case and that "no bill has been presented to Continental Casualty Company for such service by him"; that defendant did procure the attendance of one witness, did pay travelling and other expenses of two witnesses, and did become surety on DesLauriers' bond for costs in the Washington proceeding (which services are alleged to have been for the accommodation of DesLauriers and for the purpose of retaining the good will of its officers whose cooperation was necessary to defendant in the defense of the present suit).
Under these circumstances the question is presented whether defendant participated in the Washington action to an extent sufficient to bind it by the judgment therein rendered. In the recent case of Massachusetts Bonding & Ins. Co. v. Robert E. Denike, Inc., 92 F.2d 657, the Circuit Court of Appeals for this circuit upheld the entry of a judgment for the plaintiff against a surety which had participated in an action by the plaintiff against the principal in which the same issues had been raised. The participation by the surety in that case was the presence of its mechanical engineer at the trial at the direction of the defendant and his assistance in procuring witnesses for the principal. Said the court at page 658 of 92 F.2d:
"In general, a judgment against the principal is prima facie evidence against the surety, and "if the surety participates in the action against his principal, he is concluded as to the issues therein decided against his principal.' 50 Corpus Juris, p. 199; Moses v. United States, 166 U.S. 571, 17 S. Ct. 682, 41 L. Ed. 1119; Burley v. Compagnie De Navigation Francaise [9 Cir.], 194 F. 335; Strathleven Steamship Co. v. Baulch, [4 Cir.], 244 F. 412; Imperial Refining Co. v. Kanotex Refining Co. [8 Cir.], 29 F.2d 193, 200.
"While the question of what constitutes participation has not been clearly defined by the courts, we think the activity of the defendant at the proceedings in the state court, through its accredited agent, Alva O. Greist, justified the finding of the referee that the defendant had participated in that suit, and that it is bound by the judgment there obtained."
Was there "participation" by the defendant surety in the Washington case so as to bind it in the present action? There appears to be little doubt on this question. In addition to the admissions that defendant procured and paid witnesses and furnished a bond for DesLauriers in an action in which it had a vital interest, the evasiveness of the defendant in failing to meet squarely the issue of whether its counsel in the present action was representing it in the Washington action and was, or is, to be paid by it for those services leads to but one conclusion. Plaintiff filed an affidavit that defendant has paid, or is obligated to pay, Mr. Goshorn for those services. Mr. Goshorn filed no affidavit denying this, nor did he state any more in his brief than that he participated in that trial for DesLauriers and in the capacity of attorney for DesLauriers. He does not state that DesLauriers agreed to pay him for such services. He does not state that he was not representing the interest of defendant, which was not a party to that suit and on whose behalf he could therefore not have actually entered an appearance. No affidavit was filed by the defendant until after oral argument upon plaintiff's motion, when the only affidavit filed was that of an adjuster of the defendant who states that he has no knowledge of the arrangement between Mr. Goshorn and the attorneys for DesLauriers and that Mr. Goshorn has not presented a bill to defendant for his services in the Washington action.
It will be noted that this matter took four days to try in Washington. There is no suggestion that the issues raised in that proceeding were not identical with those in the case at bar. It is certainly a case where a second trial of the same question should be avoided by the operation of Rule 56 of the Federal Rules of Civil Procedure if it be a fact that the defendant did participate in the first trial. Defendant admits that it procured the witnesses and paid their expenses and that it filed a bond for costs as surety for DesLauriers at the first trial. It is uncontradicted that counsel for defendant in this present proceeding actually participated actively in the trial of that action. Since it would have been so simple a matter for the defendant to have created a genuine issue as to the party whose interests were actually being represented by Mr. Goshorn in that proceeding and as to who had undertaken to pay his fee for his services therein and since defendant studiously avoided doing so, I feel that this court should not be required to relitigate the issues.
Accordingly, I grant the plaintiff's motion and enter judgment in his favor against the defendant Continental Casualty Company is accordance with the judgment of the United States District Court for the District of Columbia in the amount of $16,952.21, with interest at six per cent. per annum on $6,527.21 thereof from May 22, 1935, on $4,500 thereof from January 25, 1940, and on $250 thereof from February 9, 1940.
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