Gulf, C. & S. F. Ry. Co. v. James

• Decision Date: 12 February 1889
• Citation: 10 S.W. 744
• Parties: GULF, C. & S. F. RY. CO. v. JAMES.
• Court: Texas Supreme Court

Page 744

10 S.W. 744

GULF, C. & S. F. RY. CO. v. JAMES.

Supreme Court of Texas.

February 12, 1889.

Commissioners' decision. Appeal from district court, Galveston county.

Action by W. W. James against the Gulf, Colorado & Santa Fe Railway Company, Webster Snyder, and James Spillane, for malicious prosecution. The interview between James and Snyder, concerning the cause of the wreck in question, occurred September 16, 1884. The prosecution was instituted September 26, 1884. Defendant railroad company appeals.

R. S. Walker, M. C. McLemore, and J. W. Terry, for appellant. F. C. Hume and Howard Finley, for appellee.

HOBBY, J.

This suit for damages grew out of the arrest and alleged malicious prosecution of the appellee, James, for the offense of perjury by the appellant, acting through its general manager, Webster Snyder, and Spillane, his clerk, acting under said manager's directions, all of whom are jointly and severally sued. The petition contains all of the allegations necessary to maintain the action.

The defense was a general denial, plea of res adjudicata, probable cause, and that appellant acted without malice. Exceptions were sustained to the plea of res adjudicata. A trial resulted in a verdict for plaintiff against the appellant alone, for the sum of $8,000 actual damages, upon which judgment was rendered against appellant for that sum in favor of the plaintiff, and the defendants Snyder and Spillane were discharged with their costs.

The affidavit made by Spillane, upon which the arrest and prosecution of James were had, charged that in a civil cause pending in the district court of Galveston county, wherein one A. W. Fly was plaintiff and appellant was defendant, brought to recover damages for personal injuries caused by the derailment and wreck of a passenger train of appellant, the said James testified by deposition falsely, willfully, and knowingly as follows: "I saw a loose wheel on a hind passenger coach, with a hot box," (referring to a passenger train of appellant at Rosenberg, about the 20th or 25th of April, 1884,) "and the car inspector of appellant packing said box. The wheel had slipped from its proper bearings, and the axle had worn bright by the friction of the wheel. The car inspector of appellant and the Sunset route were both present, and saw the condition of the wheel; and while the box was being packed the inspector of the Sunset route remarked, `That if the car was on his line he would set it out.' This remark was made in my hearing. Cannot remember the exact conversation that took place, but it was to the effect that it was dangerous to send that car on. I was under the impression that the car would be set off; but when I saw the train go on, remarked to the inspector of appellant, `It was a d____d bad job.' He remarked, `I guess she'll run.' I saw the train on its arrival at Rosenberg depot. It was not in a condition to proceed on its journey with safety, in consequence of the wheel of one of the coaches being loose. Am satisfied the train was wrecked in consequence of the condition of the wheel. Appellant's inspector afterwards told me he was required to report the condition of the train on the morning of the accident, and asked me what he should say. I told him to tell the truth. He said he would do no such thing; he would report only a few hot boxes. On the morning of the day of the accident one of appellant's coaches had one loose wheel. My attention was attracted by the condition of the wheel. It was so glaring I could not pass it unnoticed. I did not ask Snyder, general manager of appellant, for a position on his road, or intimate that I desired one."

Under the first assignment the objection is made that the verdict is not responsive to the charge, which directed the jury, in the event their verdict should be against some of the defendants and not all of them, the verdict should state the defendant or defendants against and in favor of whom the jury should find. This objection is one which, we think, goes rather to the form than the substance of the verdict. All of the defendants were sued, and the verdict was in plain language in "favor of the plaintiff against the defendant the Gulf, C. & S. Fe Ry. Co." The verdict, by necessary implication, found in favor of the defendants Snyder and Spillane. If they entertained any doubt as to that it could have been corrected at the time. There was certainly no ambiguity in the verdict as to appellant. In cases where the verdict was not altogether certain, it has been uniformly held in this state that it should be upheld when its meaning can be made manifest beyond doubt by reference to the entire record. Pearce v. Bell, 21 Tex. 691; Avery v. Avery, 12 Tex. 57. In a case where separate issues were submitted to the jury, with directions to find upon each, and the verdict responded in general terms, the failure to find upon the issues as instructed was held not to affect the verdict. Johnson v. Richardson, 52 Tex. 483. In this case the judgment correctly interpreted the finding of the jury in favor of defendants Snyder and Spillane by discharging them with their costs.

The exception to defendants' plea of res adjudicata we think was properly sustained. At a previous trial a verdict had been rendered in favor of the plaintiff against defendant Snyder, and finding appellant and defendant Spillane not guilty. Upon this verdict judgment was entered in their favor, that plaintiff take nothing by his suit, and they were discharged with their costs. This judgment was set aside, and a new trial granted upon motion of the defendant Snyder alone. Upon this trial it was pleaded in bar of plaintiff's right to recover from appellant. The effect of the order granting a new trial on the motion of defendant Snyder, who was, with appellant and Spillane, jointly and severally sued, was to vacate the former judgment, and operated as a new trial as to all of the defendants. Long v. Garnett, 45 Tex. 401; Wootters v. Kauffman, 67 Tex. 488, 3 S. W. Rep. 465.

The court charged the jury that "where the agents of a corporate company act for and in behalf of the company, and within the scope of their powers, or are ratified by the company, and such acts are willfully and purposely done with malice and without probable cause, the company and their said agents so acting are all, and each jointly and severally, liable for the damages which such acts cause to the injured party." It is contended that as the verdict is against only the appellant, and as the appellant could have only acted through its agents, its co-defendants, who were held guiltless of any wrong, that therefore the verdict is in total disregard of the law, and the charge of the court. It is claimed that the verdict is capricious, and not accounted for by the evidence, and is manifestly found without reference to the law or evidence, because all of the evidence showed that the appellant only acted in the prosecution of James, if at all, through Snyder and Spillane, its co-defendants; and that, if any wrong was done, it consisted in the institution and conduct of the prosecution of appellee by Snyder and Spillane, or one of them, and not otherwise through any act of appellant; and that, notwithstanding the charge that there arose a joint and several liability as between all of the defendants, yet appellant alone was found guilty. It may be admitted, we think, that for the reason assigned the verdict is not altogether consistent, and it may be said to be contradictory; but it does not necessarily follow that this alone will be sufficient to impair or destroy the validity of a verdict. In actions growing out of that class of torts characterized by the existence of a wrongful intent, as distinguished from torts arising from negligence, the rule is recognized as just which compels each of the wrong-doers, when such, to bear and assume the responsibility of all. The injured party may sue one, any number, or all, chargeable with the tort, and it is no defense, if one is sued, that the others are not required to share his responsibility; nor, where all are sued, would it be any defense that one only is made to assume the liability for the acts of all. The reason is, there can be no contribution as between them. Cooley, Torts, *133. "While the law permits all the wrong-doers to be proceeded against jointly, it also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy regardless of the participation of the others." Id. Had the verdict in this case been against all of the defendants, the liability of the appellant would not have been less than this, as the verdict now stands. The verdict, then, not being in a violation of the principles of law applicable to this class of torts, the question involved in the proposition contended for is simply whether a capricious or inconsistent verdict alone will...