Dalby v. Shannon & Florence , 139 Va. 488 ( 1924 )

Sims, P.,

after making the foregoing statement,- delivered the following opinion of the court:

There are but two questions presented for decision, one by the assignments of error, and the other in the brief and in oral argument for the defendants, Shannon & Florence, both of which will be disposed of in their order as stated below.

1. Was there sufficient evidence to support the verdict of the jury in favor of the plaintiff against the defendants, Shannon & Florence?

The question must be answered in the affirmative.

The material facts, which appear from the evidence (which after the verdict in favor of the plaintiff we must regard as all the evidence in the ease), and by reasonable inference therefrom, are set forth in the statement preceding this opinion and need not be repeated here, further than to restate the conclusion of fact with which that statement ends, namely, that the evidence before the jury must be regarded as showing the fact to be that the clerk was authorized by his employers to shoot rats anywhere in the store, including the prescription room in which the accident occurred, provided he did the shooting in a careful — that is, in a nontortious — -manner.

In that situation, it is settled, certainly in this jurisdiction, that the defendants are liable to the plaintiff for compensatory damages for the result of the shooting done by the servant clerk in a careless, or tortious, manner. Myers v. Lewis, 121 Va. 50, 92 S. E. 988, cited with approval in Director Genl. v. Merrill, 133 Va. 69, 77, 112 S. E. 628. As held in that ease— as correctly stated in the head-note: “Where there is neither express authority in advance, nor ratification afterwards” (which is the situation disclosed by the evidence in the instant case), “the test of the liability of the master, or principal, for the tortious act of the servant or agent, is not whether the tortious act itself — ■ the act in the manner in which it was done — is a transaction * * * within the scope of the servant’s or agent’s authority; but the true test is whether, if the act had been done in a nontortious manner, the service itself, in which the tortious act was done” — (in the instant ease, the service of rat shooting with' the rifle)— “was * * within the scope of such authority. That is to say, the true .test is, was the service, in which the tortious act was done, incident to the employment. The master or principal is liable for the tortious manner in which a transaction is conducted, or a service is performed, by a servant or agent, entrusted by the former to the latter'to be conducted or performed for him in a nontortious manner.”

A number of decisions in other jurisdictions are cited in behalf of the defendants, Shannon & Florence, upon the question under consideration, namely: Chicago, etc., Co. v. Smith, 10 Kan. App. 162, 63 Pac. 294; Dolan v. Hubinger Co., 109 Iowa 408, 80 N. W. 514; Stevens v. Woodward, 6 Q. B. Div. 318; Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477; Turley v. Boston & Maine Railroad, 70 N. H. 348, 47 Atl. 261; Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537, 33 Am. St. Rep. 257; Smith v. Peach, 200 Mass. 504, 86 N. E. 908; Evers v. Krouse, 70 N. J. L. 653, 58 Atl. 181, 66 L. R. A. 592; Guille v. Campbell, 200 Pa. 119, 49 Atl. 938, 55 L. R. A. 111, 86 Am. St. Rep. 705; Galveston, etc., R. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Doran v. Thomsen, 79 N. J. L. 99, 74 Atl. 267, and Holler v. Ross, 68 N. J. L. 324, 52 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546. Of these decisions it is sufficient to say that an examination of them discloses that they all recognize the correctness of the test applied in Myers v. Lewis, supra (121 Va. 50, 92 S. E. 988), and none of them is in conflict with that- case in their holding touching the principle involved.

2. Is the rule recognized in a number of decisions referred to in the brief and in oral argument for the defendants (which is to the effect that where the master and servant, or principal and agent, are joined as defendants in an action against them for damages for an injury occasioned by the negligent conduct of the servant, or agent, a verdict exonerating the servant, or agent, also exonerates the master or principal, and the latter cannot be held liable in such action) applicable in the instant ease?

The question must be answered in the negative.

It appears from the record that a constitutional judgment was entered and confirmed at rules against all of the defendants, and a writ of inquiry of damages was awarded the plaintiff against all of the defendants. That on the trial there was no appearance of the defendant clerk, in person or by counsel. That the only defendants who appeared and pleaded on the trial were the defendant partners, the employers, or masters, of the defendant clerk. The orders in the case, and the verdict, must be read in the light of such facts. When so read it is manifest that the writ of inquiry was not attempted to be executed against the defendant clerk on the trial which was had. That the case was not before the jury as against the defendant clerk, but only upon the execution of the writ of inquiry as against the defendant partners. Therefore, upon and after the return of the verdict against the defendant partners, without mention therein of the defendant clerk, the case still stood, as to the latter, upon the conditional judgment which had been entered at rules against the latter, and upon the writ of inquiry which had been awarded against him, that writ remaining still unexecuted.

It further appears from the record that after said verdict was returned, as aforesaid, and before the trial court acted upon the motion of the defendant partners to set aside the verdict against them, “the plaintiff moved the court to execute the writ of inquiry as to the defendant, M. K. Scott” (the said defendant clerk); and that the hearing upon that motion was continued. And it also appears from the record that that motion has not yet been acted upon by the trial court. What the trial court did was this and only this: It, on motion of the defendant partners, set aside the verdict against them and dismissed the ease; thereby, in effect, refusing to execute the writ of inquiry as against the defendant clerk.

Such being the situation, it seems plain that the verdict cannot be properly construed as finding that the •servant clerk was not guilty of negligence. Hence, the rule in question can have no application to the instant case.

For the reasons above indicated, we are of opinion •that the trial court erred in setting aside the aforesaid verdict against the defendant partners and in dismissing the case without executing the writ .of inquiry as against the defendant servant; and the case will be reversed and final judgment will, under the statute (Code section 6365), be rendered for the plaintiff against the defendants, Shannon & Florence, for five thousand dollars ($5,000.00), the apiount. of the verdict, with interest thereon from the 10th day of February, 1922 (the date of the verdict), until paid, and costs in the trial court and in this court — as the facts were fully developed on the trial which has been had and are thus such before us as to enable us to attain the end of justice by rendering such final judgment.

Reversed and final judgment entered.

Prentis and Burks, JJ., dissenting.