Lowney v. Butte Electric Ry. Co. , 61 Mont. 497 ( 1921 )

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

This action was brought by William Lowney, guardian ad litem for Helen Lowney, a minor, against the Butte Electric Railway Company, a corporation, ■ and Wilber A. Hoar, to recover damages for personal injuries. Verdict was rendered in favor of defendant Hoar but against defendant Butte Electric Railway Company and judgment was entered in accordance with the verdicts. Defendant Butte Electric Railway Company made a motion for a new trial, which was overruled. It has appealed from the order overruling the motion and from the judgment. No appeal was taken by plaintiff from the judgment in favor of Hoar.

The facts as alleged in the complaint and as contended by plaintiff were substantially as follows: Helen Lowney, at the time in question, was a child approximately four years of age. Her mother, with her and .two other children, were passengers on one of the cars of the defendant railway company of which defendant Hoar was conductor. Upon reaching their destination, the mother assisted the other two children to alight from the car while the conductor put his arm around Helen to lift her from the car to the pavement, when he carelessly and negligently let her drop, the back of her head striking the iron rim of the car step, causing severe injuries.

The railway company can be held liable in this action only [1] upon the principle of respondeat superior as no other negligence is charged than that of the conductor letting the child fall. By reason of these circumstances, appellant contends that it cannot be held liable to plaintiff unless defendant Hoar, who was the negligent agent, is also held liable; but the jury, by its verdict, exonerated defendant Hoar, while finding against the defendant company. There can be no question but that the two verdicts are inconsistent for the finding by the jury which will support one verdict would make the other one impossible. A different case would be presented if both defendants were primarily charged with negligence and one was not charged solely under the rule of respondeat superior. In such a case the liability of one does not depend upon the negligence of the other but each one is primarily liable for the negligence of which he himself was guilty in whole or in part. In such case the verdict against one is not dependent in any way upon the verdict against the other, but in this case the railway company cannot legally be liable unless Hoar was likewise liable. The difficulty, however, in applying that rule of liability to this case, lies in the fact that it is impossible for this court to say whether the jury found in good faith that Hoar was free of negligence but capriciously rendered a verdict against the defendant company, or in good faith rendered its verdict against the defendant company based upon the negligence of Hoar but capriciously exonerated him. The authorities outside of this state are divided upon the proposition as to whether or not, under the circumstances, the judgment against the principal shall stand, but it seems to us that the weight of authority is to the effect that when the servant, through whom the negligence occurred and by which only the master can be held liable, is exonerated by the verdict of the jury, such exoneration inures to the benefit of his principal, and that therefore a verdict against the latter under such circumstances cannot be sustained. The leading authorities so holding are as follows: 18 R. C. L., Master and Servant, par. 236; Doremus v. Root, 23 Wash. 710, 54 L. R. A. 649, 63 Pac. 572; Southern Ry. Co. v. Harbin, 135 Ga. 122, 21 Ann. Cas. 1011, 30 L. R. A. (n. s.) 404, 68 S. E. 1103; Bradley v. Rosenthal, 154 Cal. 420, 129 Am. St. Rep. 171, 97 Pac. 875; McGinnis v. Chicago etc. Ry. Co., 200 Mo. 347, 118 Am. St. Rep. 661, 9 Ann. Cas. 656, 9 L. R. A. (n. s.) 880, 98 S. W. 590; Morris v. Northwestern Improvement Co., 53 Wash, 451, 102 Pac. 402; Sipes v. Puget Sound Electric Ry., 54 Wash. 47, 102 Pac. 1057; Fimple v. Southern Pacific Co., 38 Cal. App. 727, 177 Pac. 871; Hayes v. Chicago Telephone Co., 218 Ill. 414, 2 L. R. A. (n. s.) 764, 75 N. E. 1003; Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 81 N. E. 411; Chicago, St. P. M. & O. Ry. Co. v. McManigal, 73 Neb. 580, 103 N. W. 305, 107 N. W. 243; Stevick v. Northern Pac. Ry. Co., 39 Wash. 501, 81 Pac. 999; Indiana Nitroglycerine & Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361, 75 N. E. 649. The leading authorities holding to the contrary are as follows: 18 R. C. L., Master and Servant, par. 236; Illinois Cent. Ry. Co. v. Murphy’s Admr., 123 Ky. 787, 11 L. R. A. (n. s.) 352, 97 S. W. 729; Broadway Coal Min. Co. v. Robinson, 150 Ky. 707, 150 S. W. 1000; Illinois Cent. R. Co. v. Outland’s Admx., 160 Ky. 714, 170 S. W. 48; Carson v. Southern Ry. Co., 68 S. C. 55, 46 S. E. 525; Texas & P. Ry. Co. v. Huber (Tex. Civ.), 95 S. W. 568; Bedenbaugh v. Southern Ry. Co., 69 S. C. 1, 48 S. E. 53.

It must also be borne in mind that where the principal is held liable under the rule of respondeat superior, he has the right of action against the servant for the damages he has sustained by reason of the servant’s negligence. In this ease, if the judgment against the railway company is to be sustained, while the judgment in favor of Hoar remains as a final determination that he was not negligent, then the latter judgment constitutes a bar to any action by the railway company to recover its damages against Hoar. Thus, the principal is charged with the liability for the act of the servant but is denied the right to compel the servant to account for the damages due to his wrongful act. This in itself is a substantial reason why the railway company should not be held liable for the damages unless Hoar is also held responsible.

In opposition to appellant’s contention, respondent relies upon the decisions of this court found in the eases of Verlinda v. Stone & Webster Engineering Corp., 44 Mont. 223, 119 Pac. 573, and De Sandro v. Missoula L. & W. Co., 48 Mont. 226, 136 Pac. 711. It is true that in both opinions appear dicta supporting respondent’s theory of the case, but it is elementary that such expressions not necessary to the determination of the issues involved are not binding upon the court. Each of those cases can be distinguished from the one at bar and therefore does not present a precedent establishing the law in this state. In the Verlinda Case there was involved the charge of negligence in the matter of the selection of a derrick hook, it being claimed that Wallace was the agent through whom the negligence occurred. As this court said in that ease, “the action of the jury is therefore clear if, as was probably the fact, it be assumed that the jury found that the company was negligent in the performance of it3 primary duty to furnish a reasonably safe appliance, and could not agree as to whether Wallrce was negligent in the selection of the mode of its use.” In other words, in that case the jury could find that the company was guilty of negligence without finding that Wallace was so guilty. In the Verlinda Case, no verdict was rendered as to the individual defendant, which was construed as no verdict at all as to him, while in this ease there was a verdict expressly finding in favor of defendant Hoar. In the De Sandro Case, plaintiff was injured by the caving in of a trench in which he was working. The work was being done for the defendant company by Odenwald and Hadalin as agents of the company. Hadalin was made a party defendant in the action but Odenwald was not. As the jury may have concluded that Odenwald was the one guilty of negligence instead of Hadalin, it- did not appear that the defendant’s liability was absolutely dependent upon the negligence of the defendant Hadalin. These distinguishing features prevent these two cases from having any controlling effect upon the ease involved here.

As one of the vital issues in the ease was whether or not [2] defendant Hoar was guilty of negligence, it follows that the verdict against the railway company could have been based reasonably only upon the finding that Hoar was negligent, while, on the contrary, a verdict in favor of Hoar could be based reasonably only upon the finding that he was not negligent. The case presents a situation somewhat analogous to that which is presented when the trial court, sitting without a jury, has made inconsistent findings. It is the universal practice of appellate courts in such cases to reverse the judgment entered upon such inconsistent findings and remand the ease to the trial court for a new trial. Such proceeding is the only logical course, inasmuch as 'by reason of the conflicting findings, the appellate court is wholly unable to determine whether or not the judgment was rightly entered. In this ease, the court is equally unable to determine which verdict, based upon findings inconsistent with those that support the other verdict, was right. Unquestionably, one was wrong, but as we are unable to go behind the verdicts and read the minds of the jurors, we cannot determine which was" wrong; but we do know that it is logically impossible in this case for the defendant company to be liable in damages to plaintiff while defendant Hoar is not. If an appeal had been taken by plaintiff from the judgment in favor of Hoar whereby this court would have jurisdiction to consider the whole case and act upon both judgments, it might remedy the wrong done due to the return of the inconsistent verdicts, by holding that there was a mistrial and sending the case back for a new trial. However, plaintiff has not taken an appeal from the judgment in favor of Hoar, by reason of which that judgment has become final. We cannot reverse that judgment because it is not before us, and therefore it must be deemed established, beyond any further controversy that Hoar was not guilty of negligence. Under this state of the record, this court is powerless to correct the incongruous situation by sending the . case back for a new trial whereby the issue of negligence as to both defendants can be determined definitely. With the judgment in favor of defendant Hoar a valid and subsisting judgment, a new trial would leave the parties in exactly the same situation in which they are at the present time and therefore would be of no avail. The only logical course is for this court to hold that the judgment against the defendant railway company must be set aside for the reason that it is not supported by the finding of the jury as expressed in its verdict directly exonerating Hoar.

Petition for rehearing denied January 30, 1922.

Other assignments of error were made by appellant, but inasmuch as they are not necessary to the final determination of the ease, they will not be considered.

The order overruling the motion for new trial is reversed.

For the reasons herein stated, the judgment is reversed and the cause remanded to the district court, with directions to enter judgment in favor of defendant railway company.

Reversed with directions.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.

Associate Justices Beynolds and Cooper

: Our attention has been called to the fact that regarding the judgment in favor of defendant Hoar, plaintiff made a motion for new trial in the district court, which motion is still pending. Under these circumstances, it yet may be possible for the ease to be retried and a decision rendered upon the merits, and for this reason it seems to us advisable to send the case back for a new trial. Such course was adopted in most of the cases upon which our decision of this case was based, is consistent with our opinion already rendered and is in accordance with justice as between the parties.

It is therefore our opinion that the order heretofore entered in said matter should be modified by striking out that portion thereof which directs the entry of judgment in favor of defendant railway company, and in lieu thereof it 'be ordered that the cause be sent back to the district court for a new trial.