Missouri-Kansas-Texas Railroad Co. v. Stanley , 1962 Okla. LEXIS 411 ( 1962 )

IRWIN, Justice.

Plaintiff, Annabelle Stanley, brought this action against Missouri, Kansas & Texas Railroad Company, G. W. Curtis and Frank Robertson, for damages allegedly sustained by the negligent acts of the defendants, G. W. Curtis and Frank Robertson, while acting as the servants and employees of the railroad company. The cause was tried to a jury and the jury returned a verdict against the .railroad company only. The defendants, G. W. Curtis and Frank Robertson were not mentioned in the verdict.

The railroad company filed its Motion for Judgment Notwithstanding the Verdict; Motion for Judgment, and Objection to Entering Judgment. The grounds for these motions were that since the jury found that the railroad company’s co-defendants and employees were not guilty of any acts of negligence, it could not be guilty of any negligence. The plaintiff did not except or object to the verdict as rendered.

These motions were overruled and judgment was entered on the verdict against the railroad company and in favor of the employee-defendants, G. W. Curtis and Frank Robertson.

The railroad company’s motion for new trial was overruled and it perfected its appeal. Plaintiff did not file a motion for new trial nor did it cross appeal and the only parties in this appeal are the plaintiff and the defendant .railroad company.

Plaintiff states in her brief:

“For this appeal it is sufficient to indicate here that the only acts of negligence alleged or proved were those of the employee-defendants. No independent acts of negligence on the part of the employer-defendant were alleged or proved. The sole basis of the liability of the employer-defendant was under the doctrine of •respondeat superior.”

Plaintiff also states that, “It is well established in this state that under the doctrine of respondeat superior, if the servant is exonerated the Master cannot be liable”. This statement is in line with Chicago R. I. & P. Ry. Co. v. Reinhart, 61 Okl. 72, 160 p. 51, wherein we held:

“Where the negligence complained of is primarily attributable to the agent and the responsibility of the principal is secondary in the sense that the principal has committed no wrong but under the law is accountable for the conduct of his agent, they both may be sued in a single action, but a verdict, exonerating the agent, must necessarily exonerate the principal, for the principal cannot be held responsible for an act of the agent if the agent has committed no tort.”

Plaintiff urges that above authorities are not applicable in the case at bar for the reason that the verdict was not an exoneration of the employee-defendants, but merely indicated a failure on the part of the jury to assess damages ag'ainst the employee-defendants.

It is appropriate at this time to note that plaintiff did not appeal from the judgment exonerating the employee-defendants; that plaintiff does not contend that the trial court did not have jurisdiction to enter the judgment rendered nor that that portion of the judgment which exonerated the employee-defendants from liability is void and that the same is not a final adjudication of plaintiff’s rights against the employee-defendants. It is to be further noted that the rights of the plaintiff and the employee-defendants as adjudicated by the final judgment is not before this Court in this appeal, other than in so far as such judgment has a material bearing on the issues between the plaintiff and the railroad company.

Plaintiff states that this is a case of first impression before this court and cites Lloyd v. Boulevard Express, 79 Cal.App. 406, 249 P. 837, wherein an action was brought against Mitchell, an employee, and his employer and the verdict was against the employer only. The Court said:

“ * * * it is quite true * * * that, if the Boulevard Express were liable, defendant Mitchell was also liable. But it will be noted in these verdicts that the jury did not find either for or against Mitchell. It is the settled law in this state that the verdict of a jury against one of two defendants is not a verdict in favor of the other defendant. Such a verdict indicates simply that the jury failed to find upon the issues. The defendant Boulevard Express noticed the omission, and did not ask that the jury should be .required to find on the issue of neglect as to defendant Mitchell, and hence cannot now be heard to complain. * * * ”

In the above case, three cases were consolidated, and in one case judgment was rendered against Mitchell and Boulevard Express; in the other two cases judgment was rendered only against Boulevard Express. The opinion does not state whether Mitchell was completely exonerated in the two cases wherein judgment was entered only against Boulevard Express. In the instant action, the judgment appealed from completely exonerated the two employee-defendants.

The Boulevard Express case was cited with approval in Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 231 P.2d 816, wherein the verdict of the jury was silent as to the liability or negligence of the employee and against the express company. The express company appealed from the judgment against it and in affirming said judgment the court said:

“ * * * In this connection, it is said in Irelan-Yuba etc. Min. Co. v. Pacific Gas & Electric, 18 Cal.2d 557, 570, 116 P.2d 611, 619, ‘It is well settled that a verdict against one of two defendants but which is silent as to the other defendant is not a verdict in favor of the latter but is merely a failure on the part of the jury to find upon all of the issues.’ That has been held to be the rule in many cases. * * *»

It was suggested in that case that the above rule was subject to the qualifications that the verdict must be construed with reference to the pleadings, evidence and instructions. In discussing this suggestion, the court said, “The rule is, however, that the silence as to one defendant stands as no verdict as to him unless the instructions to the jury show a contrary meaning”. In that case the instructions and verdict were not part of the record and the court said, “We must presume, therefore, that they were proper, and under the issues so presented, a proper verdict was returned.”

In the instant action the jury was instructed (instruction No. 13) that if the employee-defendants were guilty of negligence and that said negligence was the proximate cause of the injury, the verdict should be for plaintiff against the employee-defendants and the railroad company. Another instruction (No. 12) was as follows:

“Should you find from a preponderance of the evidence herein that defendant railroad company was guilty of any acts of negligence alleged in the plaintiffs petition and that said negligence was the proximate cause of the accident resulting injury to the plaintiff, if any, then your verdict should be for the plaintiff and against the defendant railroad company.”

Although instruction No. 12 may have been erroneous, if we presume that the jury followed instructions and we certainly have no right to presume otherwise, we must conclude that the jury’s verdict was responsive to instruction No. 12, as the verdict was “for the plaintiff and against the defendant railroad company”.

This is substantiated by the fact that in instruction No. 13, the verdict should be for the plaintiff against the employee-defendants and the railroad company if the jury found that the employee-defendants were guilty of any negligence and said negligence was the proximate cause of the injury.

Although the verdict which was against the railroad company only, may not have specifically exonerated the employee-defendants, such verdict was .responsive to the instructions, and the judgment rendered thereon did exonerate the employee-defendants. We therefore have a cause of action predicated on alleged acts of negligence of employee-defendants, and the defendant-employer’s liability, if any, is based solely upon the negligent acts of the employee-defendants which are attributable to the employer under the .rule of respondeat superior, and a judgment rendered therein against the defendant-employer which exonerates the defendant-employees from liability.

In considering these facts we should be mindful of the distinction between the ordinary action for injuries where all of the defendants allegedly participated in the wrongful act which caused the injury, and an action like the case at bar, where one of the defendants is allegedly liable by operation of law under the rule of re-spondeat superior.

This distinction is discussed in Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L.R.A. 649, and the facts in that case are similar to the facts in the case at bar. In the Doremus case, the plaintiff instituted an action against Root and The Oregon Railroad & Navigation Company. Root was conductor on a train of the railroad while the plaintiff was fireman and plaintiff alleged that through the negligence of the defendant-employee Root, he was injured. The sole basis of liability of the employer-defendant railroad was under the doctrine of .respondeat superior. In that case, as in the case at bar, the verdict of the jury was against the defendant-employer alone with no mention being made as to the employee-defendant. The verdict was received and filed and a judgment was entered against the defendant-employer, and judgment was also entered in favor of the defendant-employee and against the plaintiff. In that case it was held:

“Where a fireman was injured in a collision owing to a train conductor failing to obey his orders, and he sued the railroad and the conductor jointly, and a verdict was rendered against the railroad company, nothing being said about the conductor, and the court entered judgment in favor of the conductor, it was error to enter judgment against the railroad, since, if the conductor was not negligent, the railroad could not be liable, and the judgment in favor of the conductor operated as an estoppel in favor of the railroad.

“No retrial of the issues between the conductor and plaintiff or between him and the railroad could be ordered on appeal, since, even if the judgment should be regarded as one under Bal-linger’s Ann.Codes & St. §§ 6500-6521, declaring a judgment may be appealed from in part, there was before the appellate court only the judgment against the railroad; and, the judgment in favor of the conductor being at the most voidable, it could not be reversed, and, operating as an estop-pel in favor of the railroad company, the judgment against it should be reversed without retrial.”

See also Rosenzweig & Sons v. Jones, 50 Ariz. 302, 72 P.2d 417; Bickelhaupt v. Inland Motor Freight, 191 Wash. 467, 71 P.2d 403; Louisville & N. R. Co. v. Farney, 295 Ky. 8, 172 S.W.2d 656, and Emmons v. Southern Pac. Co., 97 Or. 263, 191 P. 333. The above Arizona and Oregon cases cited with approval the Doremus v. Root case, supra.

In Consolidated Gas Utilities Co. v. Beatie, 167 Okl. 71, 27 P.2d 813, an action was brought against the company upon the principle of respondeat superior, and the company’s employee was joined as a co-defendant. The verdict was in favor of the plaintiff against the company and for the defendant employee and the company appealed from the adverse judgment. In the opinion we cited with approval Chicago, R. I. & P. Ry. Co. v. Reinhart, supra, and other cases with reference to the liability of an employer under the rule of respondeat superior, where the alleged acts of negligence are based solely upon the alleged negligence of the employee. In the Consolidated Gas Utilities case, the judgment of the trial court was reversed and remanded with directions to grant a new trial.

In Shell Petroleum Corporation v. Wilson, 178 Okl. 355, 65 P.2d 173, we said:

“It is a well-settled rule of law that where a plaintiff’s cause of action is predicated on alleged acts of negligence of a servant, which in turn are attributable to the master under the rule of respondeat superior, and the servant is exonerated from blame, the employer is likewise exonerated. Consolidated Gas Ut. Co. v. Beatie, 167 Okl. 71, 27 P. (2d) 813, and the Oklahoma cases cited therein.”

When the verdict was rendered in the case at bar, such verdict was responsive to the instructions and plaintiff made no objections; plaintiff did not request that the jury be instructed to return a verdict as to the employee-defendants; plaintiff did not object to the construction the court placed on said verdict in its judgment exonerating the employee-defendants, nor did plaintiff file a motion for new trial or cross-appeal; and the judgment exonerating the employee-defendants, although the same may have been voidable, has become final.

In Apache Gas Co. v. Thompson, 177 Okl. 594, 61 P.2d 567, it was contended that the verdict and judgment thereon exonerating the employee necessarily released the employer gas company. In discussing such contention we said:

“However, in this class of cases where the plaintiff has failed to object to the receipt of the verdict or complain of the entry of judgment thereon and has failed upon appeal to file a cross-petition in error, this court has always held that the judgment based upon the verdict against the principal cannot stand. * * *

* * * * * *

“The rule, however, is confined strictly in its application to cases where the sole and only responsibility of the master is under the doctrine of respondeat superior, and by reason of the exclusive negligence of the servant who has been exonerated by the jury. * * *”

In Mid-Continent Pipeline Co. v. Crauthers, (Okl.), 267 P.2d 568, we held:

“Where the master is liable to a third party for the tort of his servant solely by reason of the doctrine of re-spondeat superior, and no independent or concurring act of negligence by the master is shown, a valid release of the servant from liability for the tort operates to release the master.”

We conclude that where a cause of action is predicated solely on alleged acts of negligence of an employee and the employer’s liability, if any, is based solely upon the alleged negligent acts of employee which are attributable to the employer under the rule of respondeat superior, and the employer and employee are sued in a single action, a judgment exonerating the employee which has become final, must necessarily exonerate the employer.

We further conclude and hold that since the plaintiff did not protect herself against that portion of the judgment exonerating the employee-defendants from liability, which has become final, this court can only reverse that portion of the judgment appealed from; that the trial court erred in entering judgment against the defendant railroad company and since the employee-defendants have been exonerated, the defendant railroad company is exonerated.

It is therefore ordered that the cause be remanded to the trial court with directions to vacate that portion of the judgment from which an appeal was perfected and enter judgment in favor of the railroad company.

Judgment reversed and remanded with directions.

WILLIAMS, C. J., and WELCH, DAV-ISON, HALLEY, JOHNSON and JACKSON, JJ., concur. BLACKBIRD, V. C. J„ and BERRY, J„ dissent.