Barnes v. Ashworth

• Decision Date: 12 June 1930
• Citation: 153 S.E. 711
• Court: Virginia Supreme Court
• Parties: BARNES et al. v. ASHWORTH.

153 S.E. 711

BARNES et al.

v.ASHWORTH.

Supreme Court of Appeals of Virginia.

June 12, 1930.

The verdict of jury, in action against driver and owner of automobile, was silentin respect to driver and in favor of plaintiff against owner of automobile, thereby impliedly finding in favor of driver whose negligence was alleged to have caused injury.The court, however, was of the opinion that jury regarded an instruction in respect to negligence of driver being chargeable to owner as authorizing finding that any negligence of driver would be imputed to owner alone, and that driver would not be liable personally.

New trial was granted by reason of fact that jury's verdict, which was silent as to driver of automobile sued together with owner, implied finding in favor of driver so as to exonerate owner.

Error to Circuit Court, Norfolk County.

Action by R. E. Ashworth, administrator of Martin L. Hagwood, deceased, against Broadus B. Barnes and another.Judgment for plaintiff, and defendants bring error.

Reversed and rendered.

Harry H. Kanter, of Norfolk, for plaintiffs in error.

James G. Martin, of Norfolk, and Tom E. Gilman, of Portsmouth, for defendant in error.

EPES, J.

This is an action brought by notice of motion for judgment in the circuit court for Norfolk county by R. E. Ashworth, administrator of Martin L. Hagwood, deceased, against Samuel Ballentine and Broadus B. Barnes to recover for the death of said Hagwood, who was struck and killed about 10 p. m. on February 25, 1927, by an automobile belonging to Broadus B. Barnes, which was at the time being operated by Samuel Ballentine.At the time Hagwood was struck Barnes was sitting on the front seat beside Ballentine.

The defendants below assign error.For convenience we shall refer to the parties as plaintiff and defendants as they appeared in the lower court.

The only negligence alleged is the negligence of Ballentine, the driver; and the only theory upon which the plaintiff seeks to fix liability upon Barnes, the owner of the automobile, is that Ballentine was operating the automobile as the agent or servant of Barnes, and is liable under the doctrine of respondeat superior for the tort of Ballentine.The case was tried twice in the lower court.The first trial resulted in a verdict silent as to Ballentine, the driver, but finding for the plaintiff against Barnes, the Owner, and fixing his damages at $10,000.This verdict the court set aside on the motion of both defendants.The second trial resulted in a verdict for $8,000 against Ballentine and Barnes jointly, upon which the court entered judgment against both defendants.

On the first trial the court, over the objection of the defendants that there was no evidence in the record showing that Ballentine was the agent or servant of Barnes, gavethe following instruction drawn by the court itself:

"The court instructs the jury that if they believe from the evidence that Ballentine was the agent or representative of Barnes in driving the automobile for Barnes in the place of a chauffeur then the negligence of the driver in the management of the automobile is chargeable to Barnes."

The jury on the first trial returned the following verdict: "We, the jury, find for the plaintiff and fix the damages at $10,000 against B. B. Barnes, the sum to be paid to Mrs. Anna Ashworth Hagwood."

Whereupon, as the record states, "Broadus B. Barnes and Samuel Ballentine moved the court to set aside the said verdict of the jury and to enter final judgment on behalf of both defendants, on the following grounds: " (1) because the verdict was contrary to the law and evidence; (2) because the verdict of the jury exonerated Ballentine, the actual operator of the automobile, from negligence, and, therefore, as a matter of law, exonerated Barnes, the owner of the automobile, because Barnes could be held liable, if at all, only under the doctrine of respondeat superior, and hence the judgment of the court should be entered in favor of both defendants; (3) because the court erred in giving the instructions which were objected to by the defendants.This motion of the defendants was resisted by the plaintiff.

The court granted the motion of the defendants to set aside the verdict, but refused to enter judgment for the defendants; and instead ordered a new trial on all questions at issue in the case, overruling the motion of the plaintiff that the verdict of the jury be held conclusive as to the amount of damages and the new trial limited to the question of the liability of the defendants.

In "Plaintiffs' Bill of Exception A"the court states the ground upon which it set aside said verdict, but refused to enter judgment for the defendants, and ordered a new trial, i. e.: "The court was of opinion that the jury regarded this instruction"(the instruction above quoted)"as telling them that any negligence of Ballentine would be imputed to Barnes alone, and that Ballentine would not be liable in this tort case personally, but would be exempt from personal liability in a similar way as an agent is in a contract case where the contract was made for the principal by the agent."

On the second trial this instruction was modified by adding at the end thereof the words "as well as the driver, " and given as so modified.

The first assignment of error is the refusal of the court to enter final judgment for both defendants upon the first trial.-The ground of this assignment is that, as the ver diet is silent as to Ballentine, it amounts in law to a verdict that Ballentine was not liable for the death of Hagwood, upon which verdict Ballentine was entitled to have judgment entered in his favor; and that therefore, inasmuch as Barnes can be held liable, if at all, only upon the ground that Ballentine was his servant or agent for whose negligence, if any, he must answer under the doctrine of respondeat superior, and as Ballentine is exonerated from liability by the verdict of the jury, Barnes was, as a matter of law, entitled to have the verdict against him set aside and judgment entered in his favor.

The precise question here involved has not been decided heretofore by this court, but some of the principles involved are the same as those laid down in Sawyer v. City of Norfolk, 136 Va. 66, 116 S. E. 245, and the question is referred to in Dalby v. Shannon & Florence, 139 Va. 488, 124 S. E. 186.

Some courts have held, as is here contended by the appellants, that, where the master and the servant are sued together for the same act of negligence, and the master's liability rests solely upon the servant's conduct, a verdict of the jury which is silent as to the servant, but finds the master liable, is in law a verdict for the servant; and that upon either such a verdict, or upon a verdict in terms finding in favor of the servant and against the master, the servant is entitled to have judgment entered in his favor, if there be evidence in the record to support it, and that the court should thereupon enter judgment for the servant; and that then, the servant having been exonerated of liability by the express finding of the verdict, or by finding necessarily implied from the verdict, the court should set aside the verdict against the master and enter judgment in the master's favor, dismissing the action as to him.

But the best considered cases, and we think the weight of authority, sustained the view that, where a master and his servant are sued together for the same act of negligence, and the master's liability, if any, rests solely upon the servant's misfeasance or malfeasance, a verdict which in terms finds for the servant and against the master, or is silent as to the servant and finds against the master, is either predicated upon a misapprehension of the law or is so capricious and arbitrary or, at least, so contradictory and doubtful, that no judgment predicated upon the verdict should be entered for or against the plaintiff, as to either the master or the servant, but upon the motion of either the plaintiff or the defendant master the court should set aside the whole verdict, the expressed or implied finding for the servant as well as the finding against the master.Doremus v. Root, 23 Wash. 710, 63 P. 574, 54 L. R. A. 649;Emmons v. Southern Pac. Co., 97 Or. 263, 191 P. 333;Begin v. Liederbach Bus Co., 167 Minn. 84, 208 N. W. 546;Southern Ry. Co. v. Harbin, 135 Ga. 122, 68S. EX 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011;Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423;Hein v. Sulzberger & Sons, 175 App. Div. 465, 163 N. Y. S. 995;Childress, Adm'r v. Lake Erie & W. R. Co., 182 Ind. 260, 105 N. E. 467;Sparks v. A. C. L. R. Co., 104 S. C. 266, 88 S. E. 739;Walker v. St. Louis-San Francisco Ry. Co., 214 Ala. 492, 108 So. 388;Hobbs v. Illinois Cent. R. Co., 171 Iowa, 624, 152 N. W. 40, L. R. A. 1917E, 1023 and note.

When such a verdict is set aside, as a general rule, a new trial against both defendants should be awarded both upon the question of the amount of damages and the liability of the defendants.But in such a case, when a demurrer to the evidence would have been sustainable as to the liability of the party who is alleged to have committed the act of negligence complained of, the court should enter final judgment for both defendants.Such a case is very closely analogous to the case of Sawyer v. City of Norfolk & Puritan Restaurant, 136 Va. 66, 116 S. E. 245, in which this court held that, in an action brought against a licensee and his licensor for an act of negligence of the licensee, where the liability, if any, of the licensor is wholly derivative and depends solely upon the alleged specific negligence of the licensee, if a demurrer to the declaration be sustained as to the licensee, judgment should also be entered for the licensor.See, also, Dalby v. Shannon, 139 Va. 488, 124 S. E. 186.Likewise in such a case, if a demurrer to the evidence would have been sustainable as to the liability of the master or principal upon the...