Johnson v. King

• Citation: 426 S.W.2d 196,25 McCanless 292,221 Tenn. 292
• Parties: , 221 Tenn. 292 Roger JOHNSON and Jessie Lee Forsythe, Respondents, v. Loyce KING, Petitioner. Roger JOHNSON and Jessie Lee Forsythe, Respondents, v. Harry KING, Petitioner.
• Decision Date: 18 March 1968
• Court: Supreme Court of Tennessee

Page 196

426 S.W.2d 196

25 McCanless 292, 221 Tenn. 292

Roger JOHNSON and Jessie Lee Forsythe, Respondents, v. Loyce KING, Petitioner.

Roger JOHNSON and Jessie Lee Forsythe, Respondents, v. Harry KING, Petitioner.

Supreme Court of Tennessee.

March 18, 1968.

W. Frank Crawford, Memphis, for respondents.

L. Kirby Matherne, Brownsville, for petitioner.

OPINION

HUMPHREYS, Justice.

As a result of a collision between an automobile driven by Harry King, with Loyce King as a passenger, and a truck owned by Jessie Lee Forsythe, and driven by Roger Johnson, the Kings sued Johnson and Forsythe, and one Hamlett Phillips, alleging Johnson was negligent, and as he was an employee of Forsythe and Phillips, and on their business at the time, they were also liable. On order defendants jointly filed special defense pleas by which they denied the material allegations of the declarations; except, that they did admit that Johnson was employed by Jessie Lee Forsythe and Hamlett Phillips.

At the conclusion of the proof the trial judge directed a verdict of guilty against Johnson and submitted the case to the jury as to Forsythe and Phillips. The jury returned verdicts against Johnson and Forsythe, but found Phillips not guilty.

On appeal, the Court of Appeals set aside the judgment entered on the directed verdict against Johnson, there being some proof by his own testimony which tended to prove that he, Johnson, drove the truck over into his lefthand lane where the collision occurred, because, as he stated, the King automobile had first been driven into his lane, causing him to pull over into the other lane to avoid a collision; which occurred anyway because King pulled back into his own lane.

The judgments returned against Forsythe were set aside, and the suits against him were dismissed, on the ground that the jury's verdict against him was inconsistent with its verdict of not guilty in favor of Phillips, and so could not stand. This conclusion was based on the assumption the evidence showed without contradiction Forsythe and Phillips were partners and, as the Court of Appeals expresses it:

'Therefore, if the jury found against Forsythe it is inconsistent under the pleadings and proof to have found in favor of Phillips. Legally, as partners or joint venturers, they cannot be separated. A verdict against one partner under the facts of this case requires a verdict against the other for the rule is well settled that partners are jointly and severally liable for matters growing out of wrongful acts of those acting for the partnership. East Tennessee Natural Gas Co. v. Peltz, 38 Tenn.App. 100, 270 S.W.2d 591 (1954).'

After commenting on Southern Railway Co. v. Butts, 214 Tenn. 328, 333, 379 S.W.2d 794 (1964) the Court held the unappealed verdict and judgment in favor of Phillips was res judicata of the Forsythe judgment.

We agree with the disposition made by the Court of Appeals of all other assignments of error, including its action in setting aside the directed verdict and judgment against Johnson, but we are of opinion the Court was in error in holding Phillips' judgment was res judicata of the Forsythe judgment.

Looking first to the declaration, to discover the legal theory of suit, we find it alleges that Johnson was an employee of Forsythe and Phillips and was on their business as their agent, servant and employee, at the time of the collision. There is no allegation that Forsythe and Phillips were partners or joint venturers. There is simply an allegation that they were joint tort-feasors acting through a servant under such circumstances as to make applicable the respondeat superior doctrine.

Since as a matter of law joint tortfeasors are both jointlyand severally liable, Hale v. City of Knoxville, 189 Tenn. 491, 226 S.W.2d 265, 15 A.L.R.2d 1283 (1949), so that the Kings could have chosen to sue either Forsythe or Phillips, along with Johnson, or all three of them as they did, the necessary legal implication of the allegation of joint tortfeasorship was that Forsythe and Phillips were jointly liable or either one of them was liable with Johnson to answer to plaintiffs. Although we have gone far in this jurisdiction in requiring consistency in verdicts as a matter of law, we have never held that, where two or more are sued as joint tortfeasors, a verdict and judgment of not guilty in favor of one is res judicata as to the other. To the contrary, a verdict against one of two sued as joint tortfeasors is good. Howard v. Haven, 198 Tenn. 572, 281 S.W.2d 480 (1955); Schoenly v. Nashville Speedways, Inc., 208 Tenn. 107, 344 S.W.2d 349 (1961); Yellow Cab Co. of Nashville v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17 (1958).

The issue of partnership or joint venture was not raised bythe declaration. Nor, was it raised by the special pleas, in the absence of which it is not available as a basis of decision of this case.

The nature of this suit as one against joint tortfeasors cannot be recast as a suit to enforce such a kind of partnership liability as that a verdict in favor of one defendant would be res judicata in favor of the other by loose and ill-defined references by counsel and parties to the joint operation of Phillips and Forsythe as being a partnership; especially in the absence of an allegation to this effect in the declaration as a basis on which the suit was to proceed, and in the more noticeable absence of such a defense in the special pleas.

But assuming for the sake of argument the proof did establish a partnership relation between Forsythe and Phillips, still the jury's verdict in favor of Phillips would not be res judicata of the Kings' action against Forsythe. It has long been a well...