Logan v. Atlanta & C. Air Line R. Co.

• Decision Date: 08 May 1909
• Citation: 64 S.E. 515,82 S.C. 518
• Parties: LOGAN v. ATLANTA & C. AIR LINE R. CO.
• Court: South Carolina Supreme Court

64 S.E. 515

82 S.C. 518

LOGAN v. ATLANTA & C. AIR LINE R. CO.

Supreme Court of South Carolina

May 8, 1909

Appeal from Common Pleas Circuit Court of Greenville County; D. E Hydrick, Judge.

Action by W. M. Logan against the Atlanta & Charlotte Air Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following is the opinion of Judge Hydrick, referred to in the opinion:

"The grounds of the motion for a new trial herein are all based upon considerations of the testimony, except the fifth sixth, and seventh. Notwithstanding the facts of the case have been resolved in favor of the plaintiff by two juries I have carefully reviewed the testimony, and have decided not to disturb the verdict. At the time of his injury plaintiff was an employé of the Southern Railway Company which, as lessee of the defendant, had the possession and operation of the defendant's property rights and franchises. In July, 1903, plaintiff brought an action in the court of common pleas for Spartanburg county against the Southern Railway Company for the same cause of action. That case was removed to the Circuit Court of the United States by the Southern Railway Company, where it was tried, resulting in a judgment for the plaintiff. An appeal was taken to the Circuit Court of Appeals, which reversed the judgment of the Circuit Court, and remanded the case for a new trial. The opinion and judgment of the Circuit Court of Appeals will be found in Southern R. Co. v. Logan, 138 F. 725, 71 C. C. A. 281. After the rendition of the judgment of the Circuit Court of Appeals, and, while the case was still pending in the Circuit Court, the plaintiff commenced this action. The defendant pleaded the pendency of the action in the federal court in abatement. The plea was overruled. The defendant then requested the court to charge the jury:

"'(1) That the plaintiff in this action is concluded and bound by all questions of fact and law decided by the Circuit Court of Appeals in the judgment hereinbefore referred to which would have bound him in a second trial in the United States court.

"'(2) The defendant company, as lessor of the Southern Railway Company, is not liable to a servant of the latter company for injuries received by him in consequence of the negligence of such company.'

"These requests were refused. The fifth, sixth, and seventh grounds of the motion for a new trial allege error in overruling the plea in abatement and in refusing said requests.

"The defendant is liable for torts of the Southern Railway Company in the operation of its railroad on the ground that the Southern Railway Company is its agent in the operation of the road. Smalley v. Railway Co., 73 S.C. 574, 53 S.E. 1000. Therefore the law governing the relation of principal and agent is applicable. Upon the principles governing that relation the master is liable for the acts of his servant. It is well settled that the principal and agent are jointly and severally liable for the torts of the agent done within the scope of the agency. Schumpert v. Railway Co., 65 S.C. 332, 43 S.E. 813, 95 Am. St. Rep. 802, and cases cited by the court. Sometimes the principal and agent are spoken of as joint tort-feasors, though they may not, strictly speaking, be such. Nevertheless

the nature of their liability makes applicable some of the principles governing the liability of joint tort-feasors. One of these it that they may be sued jointly or severally for the torts of the agent committed within the scope of the agency; and, if sued severally, neither action will abate the other.

"There is another reason why the plea could not be sustained. The actions are pending in jurisdictions which are foreign to each other-at least in the sense and to the extent that an action pending in one will not abate an action pending in the other between the same parties for the same cause. The authorities have agreed that the courts of the different states of the Union are foreign to each other. Hill v. Hill, 51 S.C. 134, 28 S.E. 309. There is some diversity of opinion as to whether the courts of a state and those of the United States sitting within the territorial limits of the same state are foreign to each other. One of the reasons why the courts of one state will not abate an action pending therein on the plea that another action between the same parties for the same cause is pending in another state is that the citizens of a state should not be sent into a foreign jurisdiction to get justice. So far as the greater expense and inconvenience attendant upon getting justice in a foreign jurisdiction may affect the question, it would apply with equal force to the decision of the relation of the state and federal courts to each other. To send a citizen of the state into the federal courts to get justice may work as great a hardship upon him in the matter of inconvenience and expense as to send him into a foreign state. In many, if not in most, cases the trial is had as far away from his home, and he has to attend it at as great expense and inconvenience to himself and his witnesses as if he were sent into a foreign state. Moreover, the jurors who are to pass upon the credibility of his witnesses are as complete strangers to them. The Supreme Court of the United States has held (Gordon v. Gilfoil, 99 U.S. 169, 25 L.Ed. 383, and other cases) that the state courts are foreign to the federal courts sitting within the same state, and a majority of the inferior federal courts have adopted the same view. See 1 Cyc. 38, and cases cited. 1 Ency. Pl. & Pr. 764. For the sake of uniformity, I think the state courts should adopt the same view with regard to the federal courts sitting within the state, so that we shall not have the federal courts holding the state courts to be foreign and the state courts holding the same federal courts to be domestic.

"The decision of the question of res judicata

has been more difficult. The principles of the law of res judicata are few and simple, but the application of them to particular cases is not always easy. A general statement of one of the elementary principles of that law is that only parties and privies are bound by a judgment. 'Privies,' in the sense in which the word is here used, includes only those who have 'mutual or successive relationship to the same rights of property.' 24 A. & E. Ency. Law (2d Ed.) 764. 'The ground of privity is property, not personal relation.' Big. Estop. p. 142; Freem. Judg. § 162; Smith v. Moore, 7 S. C. 215, 24 Am. Rep. 479. 'Absolute identity of interest is essential to privity. The fact that two parties as litigants in two different suits happen to be interested in proving or disproving the same facts creates no privity between them.' 24 A. & E. Ency. L. (2d Ed.) p. 747. In some of the cases the word is used, somewhat inaccurately, to denote the relation and the consequences thereof between principal and agent, and, unless the sense in which the word is used is kept in mind, we are apt to be led into confusion and error. 'The application of the principle of res judicata to persons standing in the relation of principal and agent or master and servant has, by some authorities, been supported on the ground that privity exists between persons standing in these relations. But other authorities deny the existence of such privity, and hold that in such cases the technical rule is upon grounds of public policy expanded so as to embrace within the estoppel of a judgment persons who are not, strictly speaking, either parties or privies.' 24 A. & E. Ency. L. (2d Ed.) 752. Where an agent is sued, and, after trial on the merits, the issue is determined against the plaintiff, the principal, though not a party to the suit, can avail himself of the judgment as a bar when sued by the same plaintiff on the same cause of action. Swygert v. Wingard, 48 S.C. 324, 26 S.E. 653; Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649.

"A final judgment on the merits in favor of the Southern Railway Company in the case in the federal court would unquestionably have been a bar to this action, because it would have been an adjudication by a court of competent authority that the Southern Railway Company is not liable to the plaintiff, and because the liability of the defendant herein is predicated solely upon that of its agent, the Southern Railway Company. This is true, even though the defendant was neither party nor privy to that suit. The authorities generally agree that when the principal is sued for the act of his agent, he can vouch the agent to defend by giving him notice of the action and an opportunity to defend, and if the agent fails to defend, or if judgment goes against the principal, the...