the Supreme Court and testified that he took only a perfunctory part in its preparation by seeing that Mr. Hudson had whatever papers he needed (N.T. 37). Mr. Wobensmith, however, urged that the petition be filed and received no instructions or approval from anyone before it was filed, as he stated he had carte blanche as far as this suit was concerned and had instructions at the outset to defend the case to the utmost (N.T. 37-38).
Mr. Wobensmith billed both the Virginia and Pennsylvania corporations according to his own determination of the percentages they should pay (see affidavit of Mr. Wobensmith, Document No. 47, and N.T. 56-57). The bills (which have been marked D-10 and D-11) indicate that a far greater percentage was paid by the Pennsylvania corporation.
There was only one bill to the Virginia corporation concerning the Petition For Writ of Certiorari, covering a collect telegram from the Clerk of the Supreme Court and services including briefs and forwarding information (N.T. 44).
Services in connection with the deposition of witnesses for the defendants were all billed to the Pennsylvania corporation, including those for the deposition of Robert Boarman, the principal witness for defendants, and for the deposition of Robert Flora, the president of the Virginia corporation.
Even with all the evidence on the record concerning the participation of the Pennsylvania corporation in the Virginia action, it is not believed that plaintiff has met its burden of proving that the action against the Virginia corporation was controlled by the Pennsylvania corporation to such an extent that the doctrine of res judicata should apply in the peculiar circumstances of this case. It has been stated that 'While the mere payment of counsel fees or participation in a trial by one not a named party to it would not alone be sufficient * * * the extent and nature of that participation may completely alter the consequences.' Bros., Incorporated v. W. E. Grace Manufacturing Co., 261 F.2d 428, 430 (5th Cir. 1958). An important consideration is that the manufacturing corporation was an enforced party to this suit until August 14, 1958, when the final judgment on venue was rendered by the Virginia District Court, and that it was necessary for it to defend this ruling in the Court of Appeals for the Fourth Circuit. Also, Mr. Wobensmith has categorically denied any agreement regarding control, billing or favoring of one corporation as against the other.
Plaintiff has not shown that Columbia-Pottstown directed the action concerning Columbia-Virginia; in fact, the only direction which appears to have been given on behalf of Columbia-Pottstown during the entire litigation was one decision which concerned only the case against Columbia-Pottstown.
Under the peculiar circumstances with which the court is confronted in this case,
it must be found that Mr. Wobensmith's decision to render virtually all bills to Columbia-Pottstown prior to October 1959 and the other proven facts are insufficient to hold that Columbia-Pottstown so controlled the litigation that the doctrine of res judicata or collateral estoppel should apply. The plaintiff has not sustained its burden of proof on this issue of control, which is a very close question on this record.
AND NOW, April 12, 1962, IT IS ADJUDGED that the defendants in the above action did not separately, or in cooperation with others, control the litigation against Columbia Boiler Co., Inc., in the United States District Court for the Eastern District of Virginia, docketed under C.A.1964, in the United States Court of Appeals for the Fourth Circuit docketed under No. 7768 (see Manville Boiler Co. v. Columbia Boiler Co. of Pottstown, 269 F.2d 600 (4th Cir. 1959)), and in the Supreme Court of the United States docketed under No. 428, October Term 1959 (see Columbia Boiler Co., Inc. v. Manville Boiler Co., Inc., 361 U.S. 901, 80 S. Ct. 208, 4 L. Ed. 2d 156 (1959)), and IT IS ORDERED that judgment shall be entered for the defendants on the above issue of control.