Johnson v. Atl. Coast Line R. Co

• Decision Date: 26 May 1927
• Docket Number: (No. 12210.)
• Citation: 140 S.E. 443
• Parties: JOHNSON. v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

140 S.E. 443

JOHNSON.

v.ATLANTIC COAST LINE R. CO. et al.

(No. 12210.)

Supreme Court of South Carolina.

May 26, 1927.

CO. et al.

Cothran, J., and Purdy, A. A. J., dissenting.

Appeal from Common Pleas Circuit Court of Florence County; H. F. Rice, Judge.

Suit by E. P. Johnson against the Atlantic Coast Line Railroad Company, J. A. Dorsey, and another. Judgment for plaintiff against defendants named, and defendants named appeal. Affirmed.

The order of Judge Rice, directed to be reported, is as follows:

"This case was tried in the court of common pleas for Florence county on November 14, 1924, resulting in a verdict in favor of plaintiff, and now comes before me on motion of the defendants Atlantic Coast Line Railroad Company and J. A. Dorsey for a new trial; it having been agreed between counsel that the motion be marked 'Heard' at Florence, but argued before me at Marion.

"After hearing argument of counsel for defendants, and for plaintiff, the court is of the opinion that the motion for a new trial should be refused, if plaintiff complies with the terms of this order hereinafter set forth, but that the verdict of the jury should be modified and reformed.

"The verdict in this case, for $200 actual damages and $300 punitive damages against the defendant Dorsey, and $500 actual damages and $1,500 punitive damages against the defendant Atlantic Coast Line Railroad Company, is of quite unusual character. The apportionment of damages against different defendants in an action for a joint trespass has, however^ received the sanction of the courts of this state in a number of early decisions. Bevin v. Lin guard, 1 Brev. 503, 2 Am. Dec. 684; Smith v. Singleton, 2 McMul. 184, 39 Am. Dec. 122; Boon v. Horn et al., 3 Strob. 159.

"Recognizing the principle of apportionment of damages, as above stated, there remains for consideration only its application to the facts of the present case. The jury has found both actual and punitive damages against the agent, as well as against the railroad. The finding that the agent of the railroad has committed a wrongful act of willful or wanton nature causing injury to the plaintiff, is sufficient to justify a verdict against the railroad company for actual and for punitive damages.

"There are two phases of the case which should be considered separately: The verdict as to actual damages, and the verdict as to punitive damages.

"The basis of recovery for actual damages against the railroad company is the act of Dorsey as captain of the railroad police. There is, according to the finding of the jury, no other liability against the railroad than that which arises through Dorsey's acts. While the finding by the verdict is the amount of $700, as the gross sum of actual damages sustained by the plaintiff, yet the sum of $200 only was found as the amount of actual damages caused by Dorsey. There is an apparent inconsistency in these two findings; and it would seem that the rule for the apportionment of damages according to the different degrees of guilt of the two defendants does not properly apply to this situation.

"Under such circumstances, it is my opinion that, as to actual damages, the verdict should be modified, and the plaintiff be permitted to have judgment in the sum of $200; this to be a judgment jointly against the defendant Dorsey and the defendant Atlantic Coast Line Railroad Company.

"The matter of punitive damages must be viewed from a different standpoint. Such damages are given as punishment; and it is a well-recognized rule that the punishment so imposed should be tempered according to the ability of the parties to pay.

"Thus in the case of Webber v. Town of Jones-ville, 94 S. C. 197, 77 S. E. S59, it was remarked by Mr. Justice Hydrick:

" 'In estimating punitive damages, the jury have the right to consider the ability of the defendants to pay. And, while there was no testimony as to the wealth of any of the defendants, yet we know that juries consider such matters when they know the facts, even in the absence of testimony. * * * An amount which would be moderate punishment for the one might result in financial ruin to the other.'

"For the man of small means, the servant, the employee of the railroad company in a subordinate capacity, the amount of $300 as a fine or penalty might very properly be considered as punishment equally severe to a fine or penalty of $1,500 imposed upon a great railroad system of large resources and revenues.

"Applicable to the situation of these defendants, under the facts as they are known to the jury, is the rule that states in the case of Nelson v. Halvorson et al., 117 Minn. 260, 135 N. W. 819, 1913D, Ann. Cas. 106:

" 'The difference in financial condition of the two defendants would alone justify the jury in imposing different amounts as punishment uponthem, in case the conclusion was readied that both ought to be penalized.'

"The amount of punitive damages that should be awarded by the plaintiff against cither defendant is pre-eminently a matter for the determination of the jury.

"As to the cause of action for actual damages, I find, in accordance with the conclusions above stated, that a new trial should be granted, unless the plaintiff shall remit of the verdict for actual damages, by a notice in writing given the defendants' attorneys within 10 days from the date of this order, the amount of said verdict in excess of $200, and, in the event of such remission, the plaintiff shall be authorized to enter judgment in the sum of $200 jointly against the defendant Dorsey and the defendant Atlantic Coast Line Railroad Company.

"As to the cause of action for punitive damages, the plaintiff may enter judgment against the two defendants separately, in accordance with the findings made by the jury."

F. L. Willcox, of Florence, for appellants.

Whiting & Baker, of Florence, for respondent.

BLEASE, J. The plaintiff respondent, a news butcher, employed by the Union News Company, brought suit against the defendants Atlantic Coast Line Railroad Company and Brown and Dorsey, two of the agents of the Railroad Company, engaged in its police department. Plaintiff alleged that Brown and Dorsey went into a car, where he had his containers of merchandise, and forced him to open these, charging plaintiff with having contraband liquor in his possession; that the officers had no warrant authorizing the search, but that it was done by threats that they would get a warrant of arrest if plaintiff did not submit, and that under this threat he allowed them to open and search through the containers; that the officers cursed and abused him, and detained him from his business and in their custody; that the torts alleged were willful and wanton.

The defendants admitted the search of plaintiff's containers, and that they had no warrant therefor, but alleged that the search was made with the consent of the plaintiff, and denied that any profane language was used, that any tort was committed, and that any damage occurred. It was admitted that no whisky was found in plaintiff's possession.

The cause was heard before his honor, Circuit Judge H. F. Rice, and a jury. The verdict was in favor of the plaintiff, acquitted Brown, and was against the defendants J. A. Dorsey and Atlantic Coast Line Railroad Company, and was in the following language:

"We find for the plaintiff $1,500 punitive $500 actual damage against the A. C. L. R. R. Co.; $300 punitive damage and $200 actual damage against J. A. Dorsey."

The defendants Atlantic Coast Line Railroad Company and Dorsey moved for a new trial. Judge Rice, in disposing of this motion, stated the questions raised before him and discussed these in an able manner. His order will be reported in full.

The effect of Judge Rice's order was to grant a new trial, unless the plaintiff remitted of the verdict in bis favor the sum of $300 of the actual damages found for him against the railroad company, thereby making the verdict only $200 actual damages against both defendants jointly, and $1,800 punitive damages, apportioned between the two defendants, with $1,500 thereof against the railroad company, and $300 against the defendant Dorsey.

The defendants Dorsey and Atlantic Coast Line Railroad Company have appealed to this court from the result in the lower court, and bring five exceptions for our consideration.

Three of the exceptions (3, 4, and 5) relate to the same matters, and will be considered together. The contention of these exceptions is that the verdict against the railroad company, the master, should not be permitted to stand in a greater amount than the verdict against Dorsey, the servant.

We have been greatly impressed by the strong arguments submitted by both the counsel for the appellants and the respondent. Counsel for the appellants, to sustain the position taken, cites the following cases decided by this court: Jenkins v. Railroad Co., 80 S. C. 408, 71 S. E. 1010; Sparks v. A. C. l; Railroad Co., 104 S. C. 266, 88 S. E. 730; Jones v. Southern Railway Co., 106 S. C. 20, 90 S. E. 183; Beauchamp v. Winnsboro Granite Corporation, 113 S. O. 522, 101 S. E. 856; Durst v. Southern Railway Co., 130 S. C. 165, 125 S. E. 651. We shall not undertake now to re view fully all these cases. Later in this opinion we shall refer to some of them in consideration of certain matters.

|1] At this time, we think it only necessary to say that, in so far as those cases are applicable to the main proposition we have before us at this time for determination, this one important principle runs through all of them, to wit: That, when the master and the servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely upon the servant's conduct, a verdict against the master alone is illogical and cannot stand. This seems to us to be a reasonable and proper rule, for it is an inconsistent declaration on the part of the court to say that, while the servant is without blame in his conduct, yet, because of that same...