Jenkins v. Southern Railway Co.

125 S.E. 912, 130 S.C. 180, 1924 S.C. LEXIS 103

• Court: Supreme Court of South Carolina
• Decided: December 13, 1924
• Docket: 11630
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Cothran.

Action for $20,000 damages on account of the alleged malicious slander of the plaintiff by the defendant Cooper, station agent of the defendant railway Company at Kline, S. C. Verdict in favor of the plaintiff for $2,000 against the railway company and $150 against the agent. Both defendants have appealed.

The circumstances out of which the alleged slander arose were as follows :

During the watermelon season of 1922 the railroad company refused to accept such shipments unless the freight was prepaid, or a bond put up by the consignor for the freight. The plaintiff had a shipment to make, but was not prepared to prepay the freight, and had no bond up with the agent at Kline, S. C. He had made arrangements with one Rizer to make shipment under his name and under the bond which Rizer had put,up. Accordingly the agent prepared an order for Rizer to sign, authorizing this arrangement. The plaintiff had Rizer to sign it in the presence of a witness, Brabham, and presented it to the agent. It appeared from the testimony that the order was signed and witnessed by plaintiff and Brabham, on the fender of an automobile, and on that account did not appear to the agent to be genuine. The agent then said to the plaintiff, in the presence of others, that neither signature was genuine; that they were both written by the same man; and that the handwriting was that of the plaintiff. The agent then refused to accept the order or to make the shipment. A wordy altercation ensued, the agent returning to his office for a pistol and the plaintiff retiring to his place of business for similar armament. The affair blew over, however, and this suit resulted in the nature of a safety valve.

At the close of the testimony the defendant company moved for a directed verdict in its favor, upon the ground that the agent was not, at the time of the alleged slander, acting within the course of his employment. The motion was refused.

After the rendition of the verdict, the'defendants moved for a new trial upon the ground that the verdict was inconsistent, being $2,000 against the master and $150 against the servant, whose act was the basis of the cause of action. This motion was also refused.

During the trial certain witnesses were allowed to testify, over the objection of the defendants, that they understood from the language used by the agent that he intended to charge the plaintiff with having forged Rizer’s name to the order.

The exceptions raise three questions :

1. Did the Circuit Judge commit error in allowing the testimony of bystanders that they understood from the language used by the agent that he intended to charge and did charge the plaintiff with having forged Rizer’s name to the order ?

As to the first question: In Morgan v. Livingston, 2 Rich., 573, quoted with approval in Zimmerman v. McMa kin, 22 S. C., 372; 53 Am. Rep., 720, the Court said:

“It is not necessary that the words, in terms, should charge a larceny. If, taking them altogether, in their popular meaning, such is the necessary inference, then there is no doubt that they are actionable.”

But, assuming that the words alleged to have been used by the agent are not upon their face actionable as charging directly or by necessary inference the crime of forgery, in the case just cited it is held that, if the meaning of the words used be doubtful and ambiguous, the plaintiff has the right to inquire of bystanders how they understood them, quoting the following from Davis v. Johnston, 2 Bailey, 579:

“The rule in verbal slander, as to the construction of words, is, that they are to be understood in their ordinary and popular meaning. If words are susceptible of two meanings, one imputing a crime, and the other innocence, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense the defendant used them. Their conclusion must be formed from the whole of. the circum-' stances attending the publication, including the sense in which the witnesses understood the words.”

See, also, Hubbard v. Furman, 76 S. C., 510; 57 S. E., 478.

As to the second question: Tt appears beyond controversy that the alleged slander, if committed, was committed by the agent in the direct course of his employment. The question is concluded by the cases of Nunnamaker v. Smith, 96 S. C., 294; 80 S. E., 465. Hypes v. R. Co., 82 S. C., 315; 64 S. E., 395; 21 L. R. A. (N. S.), 873; 17 Ann. Cas., 620. Courtney v. Exp. Co., 120 S. C., 511; 113 S. E., 332; 24 A. L. R., 128. Graham v. Ry. Co., 89 S. C., 1; 71 S. E., 235.

As to the third question: It is unquestionably settled by the decisions of this Court and the Supreme Court of the United States that an action against a master, upon his imputed liability for the negligence or willful act of his servant, committed within the course of his employment, and against the servant, upon his personal liability for the act, does not present a separable controversy, but that the two may be united as defendants under an allegation of joint and concurrent tort. Chesapeake & O. R. Co., v. Dixon, 179 U. S., 131; 21 S. Ct., 67; 45 L. Ed., 121. Nunnamaker v. Smith, 96 S. C., 294; 80 S. E., 465. Schumpert v. R. Co., 65 S. C., 338; 43 S. E., 813; 95 Am. St. Rep., 802. Carson v. R. Co., 68 S. C., 55 ; 46 S. E., 525, affirmed 194 U. S., 136; 24 S. Ct., 609; 48 L. Ed., 907. Alabama R. Co. v. Thompson, 200 U. S., 206; 26 S. Ct., 161; 50 L. Ed., 441; 4 Ann. Cas., 1147. Cin & T. P. R. Co. v. Bohon, 200 U. S., 221; 26 S. Ct, 166; 50 L. Ed., 448; 4 Ann Cas., 1152.

The question is, does this situation present such a case as will authorize a verdict against the master for a certain amount and against the servant for a certain amount, in other words, a several verdict ?

The overwhelming weight of authority sustains the proposition thus announced in the case of Washington Gas Light Co. v. Lansden, 172 U. S, 534; 19 S. Ct., 296; 43 L. Ed., 543:

“The plaintiff in bringing his action saw fit to join the gas company and several of its officers as individual defendants. He could, had he so chosen, have brought his action against the company alone. All the defendants joined in a plea of not guilty, and the jury could not find a verdict of guilty against all, and apportion the damages among the several defendants by giving a certain amount as against the company and a certain other amount as against the individual defendants. Those of the wrongdoers who are sued together and found guilty in an action of tort are liable for the whole injury to plaintiff, without examining the question of the different degrees of culpability.”

See, also, supporting this rule, Cooley Torts, 133, 135, 136. Currier v. Swan, 63 Me., 323. Berry v. Fletcher, 1 Dill, 67; Red. Cas., No. 1357. Pardridge v. Brady, 7 Ill. App., 639. McCarthy v. De Armit, 99 Pa. 63. McCalla v. Shaw, 72 Ga., 458. Hunter v. Wakefield, 97 Ga., 543; 25 S. E., 347; 54 Am. St. Rep., 438. Crawford v. Morris, 5 Grat. (Va.), 90 McCool v. Mahoney, 54 Cal., 491. Cole v. Roebling, 156 Cal., 443; 105 P. 255. Lynch v. Chicago, 152 Ill. App., 160. Whitaker v. Tatem, 48 Conn., 520. Layman v. Hendrix, 1 Ala., 212. Glore v. Aken, 131 Ga., 481; 62 S. E., 580. Hall v. McClure, 112 Kan., 752; 212 P., 875; 30 A. L. R., 782. Forseland v. Swenson (Neb.), 192 N. W., 649. United Workers v. Coal Co., 258 E, 829; 169 C. C. A., 549. Lake Brie, etc., Co. v. Halleck, 78 Ind. App., 495; 136 N. E., 39. Deputy & Co. v. Hastings (Del. Super.), 123 A., 33. Gonsalves v. Baptiste (R. I.), 122 A., 340.

In a very early case, however, in this State, White v. McNeily, 1 Bay, 11, decided in the Superior Court at Georgetown, in April, 1784, it was decided that, where there were joint trespassers, a jury may sever damages and apportion them according to the degree and nature of the offense committed by each offender. In a note to this case prepared in 1806 it is stated that the rule announced had been followed up to that time, and “may be considered as a part of the common law of South Carolina.”

In the Ransden Case, supra, the Court, after announcing the rule, stated:

“The rule is different in South Carolina, where the jury can apportion the damages among the different defendants found guilty. It is acknowledged to be a departure from the rule at common law. White v. McNeily and others, 1 Bay, 10, 11.”

The case of White v. McNeily was followed in a decision of the lower Court at Camden, also' in April, 1784, Whitaker v. English, 1 Bay, 15, where it is said:

“Wherever men go to do an unlawful act of this kind, all and every of them are liable to the full extent; though where several are sued, a jury may apportion as they think just and proper.”

In Bevin v. Linguard, 1 Brev., 503; 2 Am. Dec., 684, it was decided upon the authority of White v. McNeily that in an action against several defendants for a joint trespass the jury may apportion the damages according to the different degrees of guilt of the trespassers.

In Smith v. Singleton, 2 McMul., 184; 39 Am. Dec., 122, Judge O’Neall, referring to the order decisions, says:

“It is true, we early departed from the English rule that in a joint action of trespass the jury cannot sever in their damages. The case of White v. McNeily, in 1784, ruled that the jury in such a case might sever and apportion the damages according to the degree and nature of the offense committed by each defendant. The wisdom of such departure is, X think, very questionable; but it has been in practice ever since conformed to.”

The question incidentally was considered in the case of Rhame v. Sumter, 113 S. C., 151; 101 S. E., 832, where the city and a plumber were sued jointly for damages resulting from an automobile running into an open ditch in the street, left in that condition by the plumber. The city was sought to be held liable for a breach of its duty to keep the street in repair, and the plumber for his personal negligence. The jury found a verdict of $425 against the city, and a like amount against the plumber. It was conceded by the appellants that the jury could, under the White v. McNeily Case, apportion the damages, but the real contention in.the case was whether the verdict meant $425 against each or both. The Court held that it was against each defendant for $425. In deciding the case, the Court held that the jury had the right to render the verdict as it was; the liability being divided between the defendants.

However much the departure from the rule of the common law may be regretted, it has been too firmly adhered to to be now abandoned. As the Court says in the case of Bevin v. Linguard (supra) :

“This appears to have been the practice in this country for a long time past; and it has not been found upon experience, productive of any mischief or inconvenience.”

In view, however, of the almost solitary position of this Court upon the question, opposed as it is by the authority of the supreme tribunal of the nation, and by almost every other State Court (and criticized as it has been by the judges who felt imposed to follow it), the rule should be confined to the precise condition which gave it birth.

. The facts in the White v. McNeily Case were these: McNeily, a Tory, who had joined the British army in 1780, with a party of marauders plundered the house of White, burnt it, and carried away his horses. He and two others of the party were afterwards sued by White for the trespass. The jury rendered a verdict of 400 pounds against McNeily, 200 against one of the other defendants, and 100 against the third. The Court declared that it was at first doubtful whether such a verdict was not a “deviation from the old common law rule of joint trespassers, who being all equally guilty in the eye of the law, it was supposed jury could not sever,” but upon consideration the rule was adopted upon the ground that' “it would be the means of preventing a multiplicity of suits, and at the same time put it in the power of the jury to apportion at once the quantum of damages, agreeable to the * * * guilt of each trespasser.”

It will be observed that in this case the three defendants were direct, active, personal participants in the outrage, and the opportunity of “making the punishment fit the crime” was the basis of the rule; McNeily receiving the greatest because doubtless of his leadership. It was not a case in which a master was subjected fi> an imputed liability for the act of his servant, where the absence of the reason for the rule denies its application.

'In the Bevin v. Linguard Case, supra, the defendants united personally in assaulting and beating the plaintiff in his dwelling house, and tearing down a part of the house, throwing about his goods, etc. The plaintiff recovered a verdict for $500, to be paid só much by one defendant and so much by another; a case of actual tort-feasors, where the opportunity of mulcting each defendant in proportion to the extent and manner of his participation afforded the ground for the application of the rule.

In the Smith v. Singleton Case the defendant had committed an outrageous battery upon the plaintiff; one Robert being present actively aiding and abetting. The plaintiff sued Robert separately, and recovered. He then sued Singleton, and he set up, as a defense, satisfaction of the judgment against Robert. The Court sustained his defense and dismissed the bill. We refer tq that case simply as another instance of the recognition of the White v. McNeily rule, applying to active, personal participation.

' In the Rhame v. Sumter Case, supra, the city was sought to be held liable on account of its breach of duty to keep the street safe; the plumber, an independent party, for his personal negligence in leaving the ditch open; an instance of joint and concurrent negligence, each participant being charged with a personal and distinct breach of duty.

In the case at bar there are several reasons why the rule announced in White v. McNeily should not be applied. In the first place, the liability of the railway company, for the alleged slander committed by its agent is not imposed upon it on account of any participation, authorization, or ratification by it in or of the servant’s act; it is an imputed liability, upon the principle of respondeat superior. The master is held liable, not because he committed the act, for it is clear that he neither committed it, participated in, or ratified it; he is held liable, not negligent' or willful, because the servant committed it while about the master’s business. It seems clear that the reason which justifies the application of the rule of White v. McNeily, the opportunity of punishing each participant according to the degree and manner of his guilt, does not exist in a case of this kind, and can only exist in the case of an actual, personal, joint, tort-feasors, and not in a case where, if that relation does not exist, it is only constructive.

That the relation of a master and servant in a case like this does not constitute them joint wrongdoers, in the accepted meaning of the term, is manifest from this consideration. In Brown v. Railroad Co., 111 S. C., 141; 96 S. E., 701, the familiar principle is announced that there is no contribution between two joint wrongdoers. In Jones v. Railroad Co., 106 S. C., 20; 90 S. E., 183, it is declared: “The company’s liability is predicated solely upon the conduct of its servants under the doctrine respondeat superior; and, under the facts and circumstances proved, if the company is liable to plaintiff, the servant or servants whose wrongful acts or omissions actually caused the injury are liable over to the company for the amount which it wili be compelled to pay on account thereof,” and in Sparks v. Railroad Co., 109 S. C., 145; 95 S. E., 344: “Moreover, if Jones’ (the servant’s) wrongful acts had caused the injury, and the company had been made to pay damages therefor under the doctrine of respondeat superior, the company would have had a right of action over against him, or, being a party to the action with the company, it would have had the right to compel him to pay the judgment” ; entitling the master not simply to contribution,. but to reimbursement; from which it must irresistibly follow that, while the relation constitutes the master and servant joint tort-feasors to sustain the action as one not separable, it does not con-situate them joint tort-feasors to the extent of the rule in White v. McNeily.

Another illogical and unjust result must follow from the application of the rule to this case. It is held in the cases of Sparks v. Railroad Co., 109 S. C., 145; 95 S. E., 344. Jones v. Railroad Co., 106 S. C., 20; 90 S. E., 183. Sparks v. Railroad Co., 104 S. C., 266; 88 S. E., 739, that if, in an action against the master and the servant jointly, the alleged liability of the master is based solely upon an alleged act of negligence on the part of the servant, and a verdict is rendered in favor of the servant and against the master, the judgment will be set aside as resting on a “baseless fabric.” In the Sparks Case, 109 S. C., 145 ; 95 S. E., 344, the Court sustains this conclusion upon the ground that otherwise the master will be deprived of his right to be reimbursed by the -servant for the damage he is called upon to pay on account of the servant’s negligent act (see quotation above set forth), and they go on to say:

“But it is perfectly clear that the company will be deprived of that right if it can now be held liable for the acts of Jones after he had been discharged from liability in the same action with the company for the same wrong, for the judgment in his favor would bar an action of the company against him, or any attempt on the part of the company to compel him to pay the judgment obtained against it. * * * As between him and the company, it is res adjudicata that he has done no actionable wrong.”

The difference between a judgment wholly in favor of the servant and one against him for a comparatively small amount is in degree only, the one being as fully res judicata as the other; hence, where the verdict is against the master for $2,000, and against the servant for $150, both based solely upon the negligent act of the servant, how is it possible for the master to exercise his right of reimbursement, with a verdict limiting the liability of the servant to $150, obstructing his path ?

But it may be suggested that there was evidence in the case of the wealth of the railway company, and a larger verdict was justifiable against them for punitive damages than against the agent. There might be some force in this proposition, if there had appeared some act of the company willful in its nature and separate from the act of the agent. That which fixes liability, however, upon the railway company is the act of the servant, and any discrimination in his favor, in the amounts apportioned, could not possibly benefit him under the master’s right to reimbursement, unless that right has been curtailed by the verdict; and, if so, the verdict cannot stand as one depriving the company of a valued right.

The questions of the character of the alleged slander as being within the rule applicable to qualified privilege, and the existence of malice in uttering them, have not been raised by the exceptions, and have not been considered, nor, if raised, whether such questions presented issues of fact for the jury.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.

Mr. Justice Marion and Mr. Acting Associate Justice RuckEr concur. Messrs. Justices Watts and Fraser dissent. Mr. Chief Justice Gary did not participate.