(concurring in the decision).
As Judge Hand states, I do not share the view that a new trial should be awarded as to certain selected defendants. This, I think he agrees, is an anomalous result, one which in my judgment is to be avoided unless the legal compulsion is strong. I do not think it is. I say so, even though I think that under compelling interpretation of the statute, § 605, the exception for testimony under subpoena does not apply to other clauses of the statute beyond the first, i.e., to testimony of others than “employees of the [communications] carrier.” Such was the express limitation, and indeed the rationale, of the first Nardone case, 302 U.S. 379, 381, 58 S.Ct. 275, 82 L. Ed. 314.
There may well be doubt whether there was sufficient evidence to present a question for the jury when the verdict on the count in question, count three, was directed. For, as Judge Hand shows, the direct connection of these defendants only came out later in the presentation of tlieir testimony then offered on behalf of Louis. Thus I do not think Mrs. Lippman was incriminated earlier. The same may also be true as to her husband and the lawyer Nachby; but it is more, probable, or at least more easily inferred, on the basis of the testimony as to their acts in the Surrogate’s courtroom, that these acts were carefully planned in advance. I mention this weakness of the case because it may thus have appeared to the judge at the time. I shall place my conclusion, however, upon what seems to me the more solid and quite persuasive ground of the effect of Adolph’s consent as found in the verdict for Louis.
That consent, as defined by the issues, testimony, and verdict, was in no way limited — if it was possible so to limit it under the language of § 605 — to use of the *699recox-ds by Louis aio-ne. Tims we now have the fact of consent or, in the statutory terms, of authorization by the sender, as established for the case, just as in negligence or indemnity cases the absence of negligence or of breach of duty may be established by a judgment in favor of the principal actor. This should inure to the benefit of persons such as the defendants, who violate no duty to Adolph once his authorization to Louis, the actor in the premises, appears. I have discussed cases from these fields of the law at some length, with appropriate citations, in Riordan v. Ferguson, 2 Cir., 147 F.2d 983, 990-993; and I think the principle is illustrated by Restatement, Judgments, 1942, § 99, under the caption, “Where Liability of a Person Is Based Solely upon the Act of Another.” As comment b states, the rule of the section, that a judgment on the merits in favor of the person committing the tort bars a subsequent action against anolher responsible for the conduct, does not apply if there is an independent basis of liability against such other person. But this cannot be the case here because, for reasons stated, the acts of the others were not tortious if Louis had Adolph’s consent.
Hence, whatever question there may have been as to the direction of the verdict at the time, now it is settled and the error, if any, is made harmless by the verdict establishing Adolph’s authorization of Louis’ use of the records. I may add also that I find no proof of any damages. There, was no claim for loss of business, sickness, doctor’s expenses, or the like; and the loss of the case in the Surrogate’s Court may be assigned to the lack of any error in Mrs. Lippman’s accounts as executrix more readily than to the belligerent character of Adolph, as demonstrated by the records. Moreover, it is hard to see what pecuniary loss Adolph could sustain by reason of a judgment vindicating the correctness of Mrs. Lippman’s conduct as a fiduciary. Unless the jury was allowed to award damages for “mental suffering”— in my judgment, a doubtful basis for recovery in this type of action — there was no foundation for a plaintiff’s verdict.
I therefore think the judgment should be affirmed as to all the defendants.