Flenner v. Southwest Missouri Railroad Company

• Decision Date: 31 August 1926
• Citation: 290 S.W. 78,221 Mo.App. 160
• Parties: RUBY FLENNER, RESPONDENT, v. SOUTHWEST MISSOURI RAILROAD COMPANY, APPELLANT; W. H. COOK, RESPONDENT. [*]
• Court: Missouri Court of Appeals

290 S.W. 78

221 Mo.App. 160

RUBY FLENNER, RESPONDENT, v. SOUTHWEST MISSOURI RAILROAD COMPANY, APPELLANT; W. H. COOK, RESPONDENT. ^[*]

Court of Appeals of Missouri

August 31, 1926

Appeal from the Circuit Court of Jasper County.--Hon. S.W. Bates Judge.

AFFIRMED.

Judgment affirmed.

McReynolds McReynolds & Flanigan for appellant.

(1) The court erred in giving plaintiff's instruction No. 1. That instruction erroneously commented on a presumption of fact. State v. Jordan, 268 S.W. 64-70; State v Hogan, 252 S.W. 387, 389; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Campbell, 301 Mo. 618, 257 S.W. 131; State v. Miller, 270 S.W. 291, 294; Ham v. Hammond Packing Co., 277 S.W. 938; Hunt v. Sanders, 232 S.W. 456; 10 C. J. 1038, par. 1434; 10 C. J. 1021, notes 59 and 60; Kay v. Met. St. R. Co., 57 N.E. 751; State v. Tracy, 243 S.W. 177; McCune v. Daniels, 251 S.W. 458, 461; State ex rel. v. Ellison, 187 S.W. 23, 268 Mo. 239. (2) The court erred in giving plaintiff's instructions No. 3 and No. 4 and defendant Cook's instruction No. B2. Miller v. United Rys. Co., 155 Mo.App. 528. (3) The entire judgment should be reversed including the verdict in favor of defendant Cook, so that the whole case may be retried under proper instructions. Miller v. United Rys. Co., 155 Mo.App. 528; C. R. I. & P. Ry. Co. v. Austin, 163 P. 517, L.R.A. 1917D 666; C. R. I. & P. v. Brooks, 179 P. 924; Costello v. Kansas City, 209 Mo.App. 155, 232 S.W. 166; R. S. 1919, secs. 1469, 4223; In re Switzer, 201 Mo. 66; 3 C. J. 622, note 11; McFadden v. Loft, 161 Mo.App. 656; Knox v. M. K. & T. Ry. Co., 199 Mo.App. 64.

Sizer & Gardner for respondent.

(1) No contribution between defendants. Appellant seeks a reversal of this judgment on the ground that ultimately it will be entitled to contribution from defendant Cook and hence error was committed in finding for such defendant. Appellant cannot enforce contribution in this case. Section 4223, R. S. 1919, relating to contribution between judgment debtors, obviously has no application to this case for the reason that the judgment is against only one of defendants. City of Springfield v. Clement, 296 Mo. 150, 156. And this renders inapplicable McFadden v. Loft et al., 161 Mo.App. 656, and Knox v. Railroad, 199 Mo.App. 64, relied upon by appellant. Only one final judgment was rendered in this case, which disposed of the rights of all the parties to the action, and the fact that that judgment was in favor of the defendant Cook, and against the defendant railway company does not militate against the rule that the judgment is entire in the sense that it must dispose of all the parties to the suit. Bank of Flat River v. Hodges, 228 S.W. 1081; Costello v. Kansas City, 209 Mo.App. 155, 160. Error, to justify a reversal, must affect the parties jointly, and then only in a case where the rights of one defendant are dependent upon those of the other. Stotler v. Railroad, 200 Mo.App. 107, 149; Adair v. Railroad, 220 S.W. 920, 929; Costello v. Kansas City, supra, 161. A corporation can only be liable by reason of the negligent act of its servant. If the servant, in the course of his employment is guilty of negligence, the corporation becomes liable under the doctrine of respondeat superior. The servant becomes liable because he has personally participated in the negligent act, and where the corporation is liable solely and only by reason of the negligent act of the servant jointly sued, his vindication automatically vindicates the corporation also. The Austin case went off on that theory, and such is the rule in Missouri. But that rule has no application to the facts in the case at bar. Plaintiff charged in her petition that she was injured through the negligence of both defendants. No concerted action was charged against defendants, but liabilty against each was sought on the theory that the negligence of each contributed, the one independent of the other, to cause her injuries. Even though we assume that plaintiff's injuries proximately resulted from the negligence of both, in that event the two defendants here would be tort-feasors, and plaintiff had the undoubted right to sue either one or both defendants for her injuries. She was not compelled to sue both, but could prosecute her action against either. State ex rel. Blythe v. Trimble, 302 Mo. 699; Berry v. Railroad, 214 Mo. 593, 598; Fulwider v. Gas, Light & Power Co., 216 Mo. 582, 591; 38 Cyc. 490 (i). Having the right to sue either or both at the inception of the suit, plaintiff had the right to dismiss or discontinue the action against either defendant at any stage of the proceedings without discharging the other defendant. Rogers v. Rogers, 266 Mo. 200; Augustus v. Railroad, 153 Mo.App. 574; Keithley v. Independence, 120 Mo.App. 255; 18 C. J. 1162, sec. 37. Function of court and jury in case of several liability. In an action against joint tort-feasors the function of court and jury is as well settled and defined as in any other action. Where proceedings are brought against two or more joint tort-feasors the jury is at liberty to find in favor of one or more and against the other. Union Traction Co. v. Aldstadt, 139 N.E. 333, 335; Economy Light, etc., Co. v. Hiller, 203 Ill. 578, 68 N.E. 72; Railroad v. Piper, 165 Ill. 325, 46 N.E. 186; Traction Co. v. Holtzclaw, 81 N.E. 1084; Young v. Gormley, 119 Ia. 546, 93 N.W. 565; Strahaul v. Asiatic Steamship Co., 85 P. 230; 38 Cyc. 491. And the injured party may, at the trial or at any other stage of the proceedings, waive his right to recover against any one or more of the tort-feasors. Telephone Co. v. Buchanan, 108 Va. 810, 62 S.E. 928; Water Co. v. Dillard, 29 S.W. 662; Groot v. Railroad, 96 P. 1019. The statute provides for contribution among tortfeasors only in event judgment is rendered against both; and the judgment having gone against only one of the defendants in this case, there can be no contribution. But if the doctrine of contribution obtains in this action it cannot be litigated in this suit. Miller v. United Railways, 155 Mo.App. 547. Before that question can be determined the matter must be litigated between the contending defendants, and that is a matter in which the plaintiff is not interested. The very fact that the law authorizes a recovery against either defendant whose negligence contributes to cause the injury, relieves plaintiff of the duty of showing which, if either, is liable to the other.

COX, P. J. Bradley and Bailey, JJ., concur.

OPINION

COX, P. J.

Action for personal injuries against two defendants, to-wit, Southwest Missouri Railroad Company and W. H. Cook. Trial by jury; verdict for plaintiff against the railroad company and damages assessed at $ 6000 and verdict in favor of W. H. Cook. The railroad company appealed.

The plaintiff was a passenger upon the railroad and was injured as a result of a collision at a highway crossing between the car of the railroad company in which plaintiff was a passenger and a motor bus owned by defendant Cook. It is conceded that there is sufficient evidence to take the case to the jury against appellant. Error is assigned in the instructions and in the release of defendant Cook.

It is contended by the appellant railroad company that it can avail itself of any error committed in favor of defendant Cook, who was released, because they were charged as joint tort-feasors and by reason of that fact appellant would be entitled to contribution from defendant Cook in case appellant should be required to pay the judgment and the facts would show that defendant Cook was also liable. That question seems to depend upon the construction to be given section 4223, Revised Statutes 1919, which, as far as pertains here, reads as follows: "Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution and all other consequences of such judgment in the same manner and to the same extent as defendants in a judgment in an action founded on a contract."

The general rule of law, apart from the statute, is, that while all joint tort-feasors are individually and jointly liable to the injured party and he may sue all or only one, yet, aside from the statute there is no right of contribution between them. There are apparent exceptions to this general rule resting on the fact in a particular case that one party may not be guilty of any active wrong and as between that party and the one whose active wrong caused the injury and who, is, therefore primarily liable, he may be entitled to reimbursement for the whole amount he may be compelled to pay. There is a wide distinction between a right of re-inbursement and the right of contribution. When the right of re-imbursement exists, then the fact that both parties may be jointly liable to a third party for injury does not destroy the right of re-imbursement. If, however, the facts are such that each may be liable to the party injured by reason of some wrongful act or neglect of his own which has contributed to the injury and such act has been committed by him jointly with the other party charged with the tort, or is disconnected from any act of the other party but committed in such a way as to make him liable to the injured party independently of any act committed by the other party, then the right of contribution does not exist except by force of the statute. [Kilroy v. St. Louis, 242 Mo. 79, 145 S.W. 769.]

We are referred to a number of cases in which it has been held that one defendant in a case where two are sued as joint tort-feasors may appeal and in the appellate court take advantage of errors committed as to the other defendant, but an examination of those cases will show that in each case the judgment was against both or the relation between the defendants was such...