Southern Railway Co. v. Harbin , 135 Ga. 122 ( 1910 )

Beck, J.

(After stating the facts.) Under the decision of this court in the case of Southern Railway Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191), a railway company and its engineer may be jointly sued lor a negligent homicide, where the negligence of the company results solely from the act and conduct of the engineer. And in the case at bar counsel for defendant relies, for authority to support the finding in favor of the plaintiff against the railway company (while in the same verdict the codefendant, the engineer, whose actual negligence is alleged to have caused the homicide, is exonerated); upon de-’ cisions of this and other courts and the rule laid down in textbooks, to the effect that where several are sued as joint tort-feasors there may be a finding against one or all of the defendants joined in the action. But we do not think that this rule, in view of the acts of negligence pleaded in this case, is applicable. Under the allegations of negligence in the petition made to show liability upon the part of the defendants, the only acts of negligence were committed by the engineer who was operating the engine at the time.it struck and killed the deceased, James Harbin; and under the decision in'the case of Southern Railway Co. v. Grizzle, supra, the negligence alleged in the present case constituted misfeasance upon the part of the railway company’s employee, its codefendant. If he were guilty of the negligence pleaded, the railway company, of course, was liable upon the principle of respondeat superior. The Compaq itself was not and could not have been guilty of any negligence independently of the acts of misfeasance upon the part of its engineer. By the verdict of the jury Michael was found not guilty of negligence causing the death of plaintiff’s son; and where the codefendant was not and could not have been guilty of negligence that would render it liable save on the principle of respondeat superior, we do not think that liability could be imputed to it where its employee was exonerated, when he' alone performed the act which constitutes the basis for the charge of negligence. In the case of McGinnis v. Railway Co., 200 Mo. 347 (98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. R. 661), where a verdict was found exonerating the servant in an action against the master and servant for personal injuries caused by the misfeasance of the servant, the Missouri Supreme Court said; “We are firmly of the opinion that in cases where the right, to recover is dependent solely upon the doctrine of respondeat superior, and there is a finding that the servant, through whose negligence the master .is attempted to be held liable, h»° not been negligent, as was true in the case in hand, there should be no judgment against the master. The verdict in this case is a monstrosity. The jury say French was guilty of no negligence, yet, in the same breath, say the company was guilty of negligence, although nothing further was done by the company than what it did through French, its servant.” And in the case of Doremus v. Root, 23 Wash. 715 (63 Pac. 574, 54 L. R. A. 649), the court says: “Joint tort-feasors are liable to the injured person (other than that he may have but one satisfaction) as if the act causing the injury was the separate act of each of them, and they have, except in certain special cases, no right of contribution among themselves. But the defendants in this character of action are in no sense joint tort-feasors, nor does their liability to the plaintiff rest upon the same or like grounds. The act of an employee, even in legal intendment, is not the act of his employer, unless, the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligence of an employee not directed or ratified by the employer, the employee is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior, — the rule of law which holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master’s business. The primary liability to answer for such an act, therefor^, rests upon the employee, -and, when the employer is compelled to answer in damages therefor, he can recover over against the employee. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N Y. 461 (30 Am. St. R. 685, 31 N. E. 987) ; note to Carterville v. Cook, 16 Am. St. R. 248; 1 Shearm. & Redi Neg. (5th ed.) § 242; 2 Van Fleet on Former Adjudication, p. 1162.” Again, on page 716 of 23 Wash. Fullerton, J., in that case, further say^s: “So, also, in such an action, whether brought against the employer sev- . orally or jointly with the employee, the gravamen of the charge is, and must be, the negligence of the employee, and no recovery, can he had unless it be proved, and found by the jury, that the employee was negligent. Stated in another way: If the employee who causes the injury is free from liability therefor, his employer must also be free from liability. This was held in New Orleans & N. E. R. Co. v. Jopes, 142 U. S. 18, 35 L. ed. 919, 12 Sup. Ct. Rep. 109.” In the note to ease of McGinnis v. Railroad, supra, 9 L. R. A. (N. S.) 881, is it said: “In Montford v. Hughes, 3 E. D. Smith, 591, it was held that if, in a joint action against master and servant, founded solely upon the negligence of the servant, the'master not being present nor acting in the matter, the servant is acquitted, there can be no recovery against the master. In such a case a verdict against the master and in favor of the servant would be self-contradictory. Indiana Nitroglycerin & Torpedo Co. v. Lippincott Glass Co., 165 lnd. 361, 75 N. E. 649.” See, in same connection, note to the McGinnis case in 9 Am. & Eng. An-n. Cases, 660. And in the ease of Furnace Corporation v. Crowder’s Admr., 110 Va. 387 (66 S. E. 63), the Supreme Court of Appeals of Virginia, affirming the judgment of the court below in overruling a motion in arrest of judgment and a motion for a judgment notwithstanding a verdict, said: “If the court had adhered to its original position and entered judgment upon the verdict for $3,500 which was first rendered by the jury, and the case in that situation had been brought before us upon the petition of the Ivanhoe Furnace Corporation, McGinnis v. Chicago, Rock Island, etc. Ry. Co., 200 Mo. 347 (98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. R. 661), and Doremus v. Root, 23 Wash. 710 (63 Pac. 572, 54 L. R. A. 649), relied upon by plaintiff in error, would have been pertinent and entitled to very grave consideration ; but the case before us differs materially from the cases cited.” Other cases in support of the conclusion which we have reached might be cited, but the question involved is elaborately discussed in the' decisions which we have referred to and in the ca'ses there cited.

Judgment reversed.

All the Justices concur, except