Nelson v. Illinois Central Railroad Company

• Decision Date: 05 December 1910
• Court: Mississippi Supreme Court
• Parties: HENRY T. NELSON v. ILLINOIS CENTRAL RAILROAD COMPANY

53 So. 619

98 Miss. 295

HENRY T. NELSON v. ILLINOIS CENTRAL RAILROAD COMPANY

Supreme Court of Mississippi

December 5, 1910

October 1910

FROM the circuit court of first district, Hinds county, HON WILLIAM A. HENRY, Judge.

Nelson appellee, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in favor of defendant the plaintiff appealed to the supreme court. The opinion of the court states the facts of the case.

Reversed and remanded.

Watkins & Watkins, for appellant.

The question of res adjudicata presented by the appellee's first plea has been settled by this court in Illinois etc. R. R. Co. v. Clark, 85 Miss. 691. In this case, the plaintiff in the court below sued the Illinois Central Railroad Company for personal injuries, and joined as defendant its employe who was directly guilty of the negligence complained of. Judgment was rendered against the railroad company but not against the employe; and on appeal the railroad company contended that the adjudged acquittal of the employe released the company. This court, however, decided that the two defendants were jointly liable, if liable at all, and that the plaintiff could have sued the defendants jointly or either of them separately, and because an unjust or erroneous judgment was entered in favor of one joint defendant was no reason for holding the other not liable.

A similar question is involved in this case. It is claimed by the railroad company that if it were liable at all it was only liable because of the wrongdoing of the Pullman Company's agents and servants, and that a judgment in favor of the Pullman Company negatived any liability whatever on its part, to which we reply that both companies were jointly liable; the appellant could have sued them jointly or separately, and because through lack of preparation of the case or some error of the trial court, or the uncertainty of the jury, a verdict has been rendered in another court in favor of one of the defendants, does not in any manner lessen the liability of the other defendant who is equally liable.

The defense set up by appellee in its second plea is equally unsound. In that plea it assumes the position that the appellant's loss was not occasioned by its servants but was caused solely and only by the employes of the Pullman Company in whose charge and custody he voluntarily placed the custody and control of his baggage. The relation of the Pullman Company to the Illinois Central Railroad Company and other carriers in this country has been a matter of such frequent inquiry on the part of the courts that it may safely be assumed that courts take judicial notice of the existence of the separate cars of the Pullman Company on every trunk line which operates in this country. It is general knowledge that the Pullman Company sleeping cars are attached to and form part of the regular passenger trains on all of the principal railroads in this country, by some secret agreement between the Pullman Company and the railroad companies. The details of such agreement in this case are unnecessary, since this court can safely assume that such arrangement is made for the mutual interest and benefit of the two companies as well as for the convenience and comfort of the traveling public. The question as to the liability of the railroad company for the acts and conduct of the Pullman Company's employes is a question of first impression in this state. It has received, however, numerous adjudications by the supreme courts of other states.

The leading case upon the question and the one most frequently cited is that of Railroad Company v. Roy, 102 U.S. 451, 26 Law Ed. 141, wherein it was held that, in a suit against the railroad company by a passenger of both companies, who occupied a Pullman Company car, the agents and servants of the Pullman Company were as to all matters which affected the passenger the agents and servants of the railroad company; in other words, that the railroad company was liable for the acts of the agents of the Pullman Company, just as it would be for its own employes in reference to all matters concerning the passenger. See 2 Kent Com. 600, 12th Ed.; 2 Parsons Cont. 218, 219, 16th Ed.; Story Bailments, §§ 601, 601a, 602; Cooley, Torts, 642; Wharton Negligence, 2nd Ed., § 627; Chit. Carriers, 256; Thrope v. Railway Co., 32 Am. Rep. 325; Airey v. Railway Co., 23 So. 512; Williams v. Pullman Co., 4 So. 85; Railway Co. v. Asthorn, 51 Am. St. Rep. 303; Railway Co. v. Ray, 101 Tenn. 1; Kinsley v. Railway Co., 28 Am. Rep. 200; Railway Co. v. Kattsenberger, 16 Lea (Tenn.) 380; Carpenter v. Railway Co., 26 N.E. 277.

Mayes & Longstreet, for appellee.

The gravamen of the action against appellee is that, notwithstanding the appellant had purchased a sleeping car ticket, and had entered the sleeping car of the Pullman Company, and delivered his suit case to the porter or conductor in charge of the car, yet, still the Illinois Central Railroad Company, by reason of the fact that it had sold him an ordinary fare ticket from Memphis to Durant, under the general obligations imposed upon carriers, became liable to account to appellant for his suit case and contents, on the theory that the Pullman car conductor and porter were agents of the Illinois Central Railroad Company.

In defense of the action, the appellee railroad company pleaded specifically first, that the appellant, Nelson, had, prior to the institution of this suit against the railroad company, begun a suit in a court of competent jurisdiction in the state of Tennessee, against the Pullman Company, in order to establish liability on that company for the loss of his property. That the cause was tried in the justice court on its merits, and a judgment entered adversely to appellant, from which he appealed to the circuit court of Shelby county, Tennessee, where, on a further trial on the merits, another judgment against him was entered, and the appellee averred that on this account, the issue was res adjudicata against appellant.

The appellee railroad company further pleaded that the appellant, Nelson, entrusted himself specially to the care of the Pullman Car Company, and placed his baggage in the care and custody of the Pullman Company; that the appellant never entered any of the ordinary coaches of the appellee railroad company; and that none of the direct employes of the railroad company were even aware of the existence of the suit case, or of its presence on the train.

One or the other of the special pleas of appellee must be substantial and a complete answer to the suit. If the plea of res adjudicata is sustained by this court, then it is an end to the controversy, and as there was no judgment final entered on that plea, the judgment of this court will in such event be final.

The only theory on which appellant may base hope that a liability may be established on the railroad company on account of the wrongful actions or the negligence of the Pullman Company's employes, is the sole theory in his declaration and referred to in the authorities cited by him, namely, that the Pullman Company's conductor and porter were the agents, servants and employes of the railroad company. In other words, unless it is admitted, for purpose of argument, that under the general obligations of a carrier, the defendant railroad company is responsible to the plaintiff, solely because the employes of the Pullman Company must be held to be the employes and servants of the railroad company, then it becomes apparent that the plea of res adjudicata is substantial and sufficient to bar recovery, because it sets up the fact that plaintiff has already one suit against these employes, servants and agents of the railroad company, with judgment adverse to him in the suit.

In the leading case of Pennsylvania, etc. Co. v. Roy, 12 Otto 451, 26 Law Ed. U.S. S.Ct. 144, Mr. Justice Harlan said: "The sleeping car company, its conductors, and porters, were in law, the servants and employes of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company." Therefore, when this appellant sued the Pullman Company, and the appellee here was in thorough privity with said company, and the defense that there was no negligence by the Pullman Company is conclusive in this suit against the appellant.

If we concede that the only way by which liability could be brought home to the railroad company would be by holding the sleeping car company's conductor and porter to be in law the employes and servants of the railroad company, then another well established principle of law will come into operation, namely, that a judgment in a suit in which an agent or servant is a party prosecuting or defending under the authority and in the right of the principal or himself, is conclusive for or against the principal or himself, citing the following authorities: Mining Co. v. Emma, Silver Mining Co., 7 F. 401; Moore v. Richardson, 100 Ill. 134; Fridges v. McAllister, 106 Ky. 791; McKenzie v. Balt, 28 Md. 101; Kingsley v. Davis, 104 Mass. 178; Lipman v. Campbell, 40 Mo.App. 564.

The case of Railroad Co. v. Clark, 85 Miss. 697, cited by appellant, differs materially and essentially from the case at bar. In the case cited, the plaintiff made both the railroad company and the engineer of the train parties defendant, and did charge not only a joint and equal liability, but charged facts separately and distinctly against each which would have constituted, if sustained by the proof, different causes of action. It was a suit against both defendants and the liability was fastened on the railroad company on the idea that its...