Howe v. Northern P. Ry. Co.

• Decision Date: 30 December 1902
• Citation: 30 Wash. 569,70 P. 1100
• Parties: HOWE v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

70 P. 1100

30 Wash. 569

HOWE v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

December 30, 1902

Appeal from superior court, Spokane county; W. E. Richardson, Judge.

Action by Elzie N. Howe against the Northern Pacific Railway Company and others. From a judgment against the company, it appeals. Affirmed.

Stephens & Bunn, for appellant.

Barnes & Latimer and Hyde, Townsend & Tompkins, for respondent.

DUNBAR J.

This is a personal injury case. On the 2d of January, 1899, the respondent was fireman on train No. 13, a mixed passenger and freight train running from Cheney to Coulee City. On this day a snowplow train had been sent ahead of the passenger train to clear the road and prepare the track for the passenger train, and at a point about six miles west of Almira, a station between Cheney and Coulee City, No. 13, upon which respondent was firing the lead engine, ran into the snowplow and respondent was injured by the collision to such an extent that his leg had to be amputated. Suit for $25,000 damages on account of his injuries was brought by the respondent against the Northern Pacific Railway Company, which was operating the trains above spoken of. Respondent joined as defendants with the railway company Frederick W. Gilbert, who was at the time the superintendent of the division of the railroad upon which plaintiff was working, and A. G. Kamm, who was the chief dispatcher employed by the railroad of the division before mentioned. The trial of the cause resulted in a verdict for respondent for $15,000 against the railway company alone, Kamm and Gilbert having been dismissed from the case by the court at the end of all the testimony. Judgment was entered upon the verdict, and from such judgment this appeal was taken.

The statement of the case by the appellant is very extensive and minute in detail, but we think we have stated sufficient to settle the propositions necessary for the determination of the cause. The complaint alleged negligence in the company in failure to promulgate and enforce ample and sufficient rules for the running of the trains; failure to provide proper machinery and appliances; in running defective locomotives and engines; that the same were unskillfully equipped manned, and fitted out; failure to furnish competent servants; an insufficient number of servants; negligently ordering train No. 13 to preceed westerly from Almira station to Coulee City on the night in question; and various other allegations of negligence and failure on the part of Gilbert and Kamm to prepare, publish, and enforce all necessary rules, regulations, and orders for the running and operation of their trains. A joint demurrer of the defendants was interposed to the complaint on the ground of misjoinder which was overruled, and on this ruling is based one of the assignments of error. It is contended by the appellant that there is no joint liability between the railway company and the dispatcher and the division superintendent; that the master cannot be liable together with any of its employés joined in an action based upon charges of this character; and it is insisted that this court has decided this question in favor of appellant's contention in Doremus v Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649. But we do not so understand the decision in that case. There the action, brought against the railroad company and Root, was based exclusively upon the alleged negligence of Root while acting as conductor of one of the railroad company's freight trains, the respondent in that case being fireman and Root conductor on the same train. The jury returned a verdict finding for the plaintiff and against the defendant railroad company, and assessed the damages of the plaintiff at $15,000. After the verdict was read, and before the jury was discharged, the attorney for defendant Root inquired of the court what construction the court would place upon the verdict with respect to defendant Root, and the court ruled that said verdict was, and should be considered as, a verdict in favor of defendant Root. The verdict was then recorded, and the jury discharged. Afterwards a judgment was entered in favor of Root and against the plaintiff for costs, and judgment was finally entered against the railroad company for the amount of the verdict, with costs to the respondent. This court held in that case that, inasmuch as the negligence of the railroad company was alleged to be the negligent action of the servant, and the jury having affirmatively found that the servant was not negligent, it must follow that there was no negligence on the part of the master, the railroad company; and that, as there had been no appeal from the judgment in favor of the servant, the cause could not be retried, and it was, therefore, ordered dismissed. In so far as the decision in this case and the discussion leading up to it are concerned, the particular question involved here was not involved in that case, nor attempted to be decided. If, however, any inference is to be drawn from the decision in this case, it is opposed to appellant's contention, for at the threshold of the case the question of nonjoinder was raised and vigorously discussed in appellant's brief, and, if the court had concluded that the appellant's contention was right on that jurisdictional question, it would not have been necessary to have examined or decided the subsequent point upon which the court's decision was based. On this question, however, there is a square conflict of authority, and we have examined it with reference not only to the cases which are cited in appellant's brief, but with reference to the cases cited in the brief of the appellants in the case of Doremus v. Root, supra. Section 242 of Shearman & Redfield on the Law of Negligence (5th Ed.) is cited to support the contention that the master and servant cannot be joined. This and the succeeding section are in reality a discussion of the principle involved in the distinction that has been raised by some courts between the liability of an agent in case of nonfeasance and that of one in case of misfeasance; but in section 248 the rule is thus stated under the title 'Joint Liability of Master and Servant': 'Wherever a master can be held responsible for the tortious negligence of his servant, the two are generally held jointly as well as severally liable; and if a servant employs a subagent under such circumstances that both the original master and the intermediate employer are liable for the negligence of the subagent, they are all jointly and severally liable,'--citing several cases, but stating that a different rule prevails in Massachusetts, and probably in Maine. The theory of the cases holding that there cannot be a joint liability is that there is really but one act of negligence; that the negligence can be imputed to the master, not by reason of his being a joint tort feasor, but by reason of his peculiar relation to his agent; and that public policy holds him responsible for the agent's acts under the doctrine of respondeat superior; and it seems that theoretically there may be something in this idea. Many of the cases, however, base their opinions upon the old distinction which we have spoken of between a case of misfeasance and one of nonfeasance, a distinction which this court in Lough v. John Davis & Co., 70 P. 491, held not to be sound, either on reason or on authority. Without specially reviewing the cases on this subject, which are collated in Warax v. Railroad Co. (C. C.) 72 F. 637, in which the right to join the master and servant is denied, there are cited, as sustaining the affirmative of the proposition: Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; Suydam v. Moore, 8 Barb. 358; Montfort v. Hughes, 3 E. D. Smith, 591; Phelps v. Wait, 30 N.Y. 78; Wright v. Compton, 53 Ind. 337; Greenberg v. Lumber Co. (Wis.) 63 N.W. 93, 28 L. R. A. 439, 48 Am. St. Rep. 911; Newman v. Fowler, 37 N. J. Law, 89. In support of the view that the master cannot be joined as defendant in an action against his servant for negligence, where the master is not personally concerned in the negligence either by his presence or express direction, the following are cited: Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745; Mulchey v. Society, 125 Mass. 487; Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590; Seelen v. Ryan, 2 Cin. R. 158; Campbell v. Sugar Co., 62 Me. 553, 16 Am. Rep. 503; Beuttel v. Railroad Co. (C. C.) 26 F. 50; Page v. Parker, 40 N.H. 47; Bailey v. Bussing, 37 Conn. 349. Other cases have been decided since with equally conflicting results. But without entering into a discussion or an analysis of these conflicting opinions, considering the fact that universal authority will hold responsible in independent actions both the master and the agent or servant whose tortious act is the cause of the injury, and the holding of this court that as to the liability of the servant or agent there is no distinction between cases...