Illinois Cent. R. Co. v. Clark

• Decision Date: 27 March 1905
• Citation: 38 So. 97,85 Miss. 691
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS E. CLARKE

38 So. 97

85 Miss. 691

ILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS E. CLARKE

Supreme Court of Mississippi

March 27, 1905

From the circuit court of Grenada county, HON. WILLIAM F. STEVENS Judge.

Clarke the appellee, was plaintiff in the court below, and the railroad company, the appellant, and one John Lewis, were defendants there. Lewis was a locomotive engineer of the railroad company, and the action was in trespass for damages inflicted on the plaintiff by the wrongful running of a train of cars against him and his vehicle while crossing the railroad track; the railroad company acted only through and by its co-defendant Lewis as its servant and agent. The verdict was in. plaintiff's favor and against the railroad company, but it acquitted defendant Lewis from all liability to the plaintiff. From a judgment based on said verdict the appellant railroad company appealed to the supreme court.

Affirmed.

Mayes &amp Longstreet, and J. M. Dickinson, for appellant.

The verdict of the jury in fixing a liability on the railroad company and in excusing the engineer, Lewis, from recovery was an exoneration of the railroad company; and if it were not an exoneration of the railroad company, and if on the facts this court should hold that plaintiff had a right to recover, then the verdict of the jury, having been returned against the Illinois Central Railroad Company alone, was against the law and the evidence. In support of this proposition, we desire to say to the court, first, that if there was any liability on the railroad company in this case it was a technical liability on the theory that liability could only be fastened on the railroad company through the medium of the alleged wrongful action of the engineer.

The right of the plaintiff against the railroad company was a derivative one, derived through the alleged wrongful action on the part of Lewis. There is no pretense anywhere in the record that the railroad company, or the principal, as such, was guilty of any wrong here. The whole cause of action is based on the alleged negligent, willful, and wanton acts of the engineer. So true is this, and so strongly did the plaintiff below endeavor to show that the engineer had acted without due regard to the rights of plaintiff, that he obtained from the court an instruction that punitive damages were warranted in the case if the acts of the engineer were willful, wanton, and reckless.

This was an action against both the company and the engineer, and if the engineer was without fault, there could be no recovery against the company, and yet the jury in their verdict excused the engineer and rendered a verdict against the company for the whole recovery.

In order to illustrate this proposition in its strength and entirety we desire to say to the court that this is preeminently a case where if any recovery could be had against the railroad company on the doctrine of respondeat superior the railroad company in this instance had it not been for the verdict of the jury could recover from the engineer any loss to which it may be subjected by reason of this suit and his wrongful conduct.

It is true that as a rule there is no contribution between tort feasors, but this rule has its exception, and that exception is exemplified in the case at bar and is one supported by the great weight of authority.

For instance, it has been asserted that "where the employer has been subjected to liability by the act of an employe he can recover indemnity from the guilty servant." Smith v. Foram, 43 Conn. 244 (s.c., 21 Am. St. Rep., 647) ; Grand Trunk Railroad Co. v. Latham, 63 Maine, 177; Lowell v. Boston, 34 Am. Dec., 33.

And especially is the rule stated in the recent cases of Warax v. Railroad Co., 73 F. 637, 641; Helm v. Railroad Co., 120 F. 389; Brewing Co. v. Phybylski, 82 Ill.App. 361, 367.

In all these cases it is held that the general doctrine that there is no contribution between tort feasor is not applicable where the wrong was wholly occasioned by the act of the employe without the actual knowledge and participation of the principal, and that where this condition is true the principal may recover over against the employe, and yet in this case, where it was not possible for any liability to be visited on the pricipal, the Illinois Central Railroad Company, except through the employe and his wrongful acts, in a suit against both the jury exonerates the employe and returns a verdict against the principal.

The question is one of original impression in this court, and is one not altogether covered precisely by precedent, that we have been able to find. But it is only because a finding of this sort, under a statute like ours, which warrants, in a suit against two defendants, a verdict against one and an exoneration of the other, has not been found elsewhere.

If the judgment in this case was res adjudicata, and of this we have some doubt, Lewis could plead his acquittal by the jury in bar of a suit by the company against him to recover for this loss imposed upon it by his alleged willful and wanton action.

Wm. C. McLean, for appellee.

Appellant's counsel ingeniously argues that this case ought to be reversed because the engineer was exonerated by the verdict of the jury, and that since the evidence shows that both engineer and railroad company were jointly and severally liable, therefore the verdict was wrong. It is evident from the amount of the verdict that the jury did not believe that there was any willfull or intentional wrong upon the part of the engineer, and consequently the verdict in exonerating the engineer can be explained upon the idea that the jury thought that the engineer would not be liable unless he was guilty of willful or wanton injury. The authorities are very much divided upon the proposition as to whether the defendants were jointly or severally liable. The authorities cited by counsel in his brief do not at all bear out his contention. In Helm v. Railroad Co., 120 F. 389, it was held that the action was not joint, but several, and that consequently a separable controversy arose so as to justify the removal of the cause to the federal court. In B. B. Co. v. Loseneick; 82 Ill.App. 361, it was specifically held that a...