Southern Ry. Co. v. Harbin

• Citation: 68 S.E. 1103,135 Ga. 122
• Parties: SOUTHERN RY. CO. v. HARBIN et al.
• Decision Date: 22 September 1910
• Court: Supreme Court of Georgia

68 S.E. 1103

135 Ga. 122

SOUTHERN RY. CO. v. HARBIN et al.

Supreme Court of Georgia

September 22, 1910

Syllabus by the Court.

In an action against a railway company and its servant to recover damages for the homicide of the plaintiff's son solely in consequence of the servant's misfeasance, where a verdict is returned finding the servant not liable, but finding in favor of the plaintiff against the railway company, such verdict should be set aside and a new trial granted.

(Additional Syllabus by Editorial Staff.)

A railroad company and its engineer may be jointly sued for negligent homicide, where the negligence of the company results solely from the act of the engineer.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by W. J. Harbin and others against the Southern Railway Company and another. Judgment for plaintiff against the railway company, which brings error. Reversed.

Holden J., dissenting.

McDaniel Alston & Black, for plaintiff in error.

A. H Davis and Jackson & Orme, for defendants in error.

BECK J. (after stating the facts as above).

Under the decision of this court in the case of Southern Railway Co. v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am.St.Rep. 191, a railway company and its engineer may be jointly sued for a negligent homicide, where the negligence of the company results solely from the act and conduct of the engineer. And in the case at bar counsel for defendant relies for authority to support the finding in favor of the plaintiff against the railway company (while in the same verdict the codefendant, the engineer, whose actual negligence is alleged to have caused the homicide, is exonerated) upon decisions of this and other courts and the rule laid down in text-books, to the effect that, where several are sued as joint tort-feasors, there may be a finding against one or all of the defendants joined in the action. But we do not think that this rule, in view of the acts of negligence pleaded in this case, is applicable. Under the allegations of negligence in the petition made to show liability upon the part of the defendants, the only acts of negligence were committed by the engineer who was operating the engine at the time it struck and killed the deceased, James Harbin; and under the decision in the case of Southern Railway Co. v. Grizzle, supra, the negligence alleged in the present case constituted misfeasance upon the part of the railway company's employé, its codefendant. If he were guilty of the negligence pleaded, the railway company, of course, was liable upon the principle of respondeat superior. The company itself was not, and could not have been, guilty of any negligence independently of the acts of misfeasance upon the part of its engineer. By the verdict of the jury Michael was found not guilty of negligence causing the death of the plaintiff's son; and, where the codefendant was not and could not have been guilty of negligence that would render it liable save on the principle of respondeat superior, we do not think that liability could be imputed to it where its employé was exonerated, when he alone performed the act which constitutes the basis for the charge of negligence.

In the case of McGinnis v. Railway Co., 200 Mo. 347, 98 S.W. 590, 9 L.R.A. (N. S.) 880, 118 Am.St.Rep. 661, where a verdict was found exonerating the servant in an action against the master and servant for personal injuries caused by the misfeasance of the servant, the Missouri Supreme Court said: "We are firmly of the opinion that in cases where the right to recover is dependent solely upon the doctrine of respondeat superior, and there is a finding that the servant through whose negligence the master is attempted to be held liable, has not been negligent, as was true in the case in hand, there should be no judgment against the master. The verdict in this case is a monstrosity. The jury say French was guilty of no negligence, yet, in the same breath, say the company was guilty of negligence, although nothing further was done by the company than what it did through French, its servant." And in the case of Doremus v. Root, 23 Wash. 715, 63 P. 574 (54 L.R.A. 649), the court says: "Joint tort-feasors are liable to the injured person (other than that he may have but one satisfaction) as if the act causing the injury was the separate act of each of them, and they have, except in certain special cases, no right of contribution among themselves. But the defendants in this character of action are in no sense joint tort-feasors, nor does their liability to the plaintiff rest upon the same or like grounds. The act of an employé, even in legal intendment, is not the act of his employer, unless the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligence of an employé not directed or ratified by the employer, the employé is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior, the rule of law which holds the master responsible for the negligent act of his servant committed while the servant is acting within the general scope of his employment and engaged in his master's business. The primary liability to...