Johnson v. Atlantic Coast Line R.
This text of 140 S.E. 443 (Johnson v. Atlantic Coast Line R.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
The opinion of the Court was delivered by
Mr. Justice Brease.
The plaintiff-respondent, a newsbutcher, employed by the Union News Company, brought suit against the defendants Atlantic Coast Rine Railroad Company and Brown and Dor *132 sey, two of the agents of the Railroad Company, engaged in its police department. Plaintiff alleged that Brown and Dorsey went into' a car, where he had his containers of merchandise, and forced him to open these, charging plaintiff with having contraband liquor in his possession; that the officers had no warrant authorizing the search, but that it was done by threats that they would get a warrant of arrest if plaintiff did not submit, and that under this threat he allowed them to open and search through the containers; that the officers cursed and abused him, and detained him from his business and in their custody; that the torts alleged were willful and wanton.
The defendants admitted the search of plaintiff’s containers, and that they had no warrant therefor, but alleged that the search was made with the consent of the plaintiff, and denied that any profane language was used, that any tort was committed, and that any damage occurred. It was admitted that no whisky was found in plaintiff’s possession.
The cause was heard before his Honor, Circuit Judge H. F. Rice, and a jury. The verdict was in favor of the plaintiff, acquitted Brown, and was against the defendants J. A. Dorsey and Atlantic Coast Dine Railroad Company, and was in the following language:
“We find for the plaintiff $1,500 punitive, $500 actual damage against the A. C. D. R.' R. Co.; $300.punitive damage and $200 actual damage against J. A. Dorsey.”
The defendants Atlantic Coast Dine Railroad Company and Dorsey moved for a new trial. Judge Rice, in disposing of this motion, stated the questions raised before him, and discussed these in an able manner. His order will be reported in full.
The effect of Judge Rice’s order was to grant a new trial, unless the plaintiff remitted of the verdict in his favor the sum of $300 of the actual damages found for him against the railroad company, thereby making the verdict only $200 actual damages against both defendants jointly, and $1,800 *133 punitive damages, apportioned between the two defendants, with $1,500 thereof against the railroad company, and $300 against the defendant Dorsey.
The defendants Dorsey and Atlantic Coast Dine Railroad Company have appealed to this Court from the result in the lower Court, and bring five exceptions for our consideration.
Three of the exceptions (3, 4, and 5), relate to the same matters, and will be considered together. The contention of these exceptions is that the verdict against the railroad company, the master, should not be permitted to stand in a greater amount than the verdict against Dorsey, the servant.
We have been greatly- impressed by the strong arguments submitted by both the counsel for the appellants and the respondent. Counsel for the appellants, to- sustain the position taken, cites the following cases decided by this Court: Jenkins v. Railroad Co., 89 S. C., 408; 71 S. E., 1010. Sparks v. A. C. L,. Railroad Co., 104 S. C., 266; 88 S. E., 739. Jones v. Southern Railway Co., 106 S. C., 20; 90 S. E., 183. Beauchamp v. Winnsboro Granite Corporation, 113 S. C., 522; 101 S. E., 856. Durst v. Southern Railway Co., 130 S. C., 165; 125 S. E., 651. We shall not undertake now to review fully all these cases. Dater in this opinion we shall refer to some of them in consideration of certain matters.
At this time, we think it only necessary to say that, in so far as those cases are applicable to the main proposition we have before us at this time for determination, this one important principle runs through all of them, to wit: That, when the master and the servant are sued together for the same act of negligence or willful tort, and the master’s liability rests solely upon the servant’s conduct, a verdict against the master alone is illogical and cannot stand. This seems to us to be a reasonable and proper rule, for it is an inconsistent declaration on the part of the Court to say that, while the servant is without blame in his conduct, *134 yet, because of that same conduct, the master is to be held blamable.
The facts in the case at bar and the verdict rendered do not, however, bring the cause within the line of the principles announced in any of the cases cited by the appellants and discussed by us. To the contrary, we think this case is readily distinguished from each of the cases mentioned. In the case here, one of the servants was not acquitted; the appealing defendants, sued together, for the same tort, the one as servant of the other as master, were both convicted of the wrongs charged against them. Since the servant, found guilty, was acting about the master’s business, and the jury found that the servant was guilty of the willful torts charged against him, it necessarily followed, by our cases, that the master as well as the servant was liable to the plaintiff in damages. But the jury, by its verdict, said that the railroad company, the master, should pay more money as damages, both actual and punitive, than the amount required to be paid by Dorsey, the servant. The verdict assessed only $200 as actual damages against the servant and $500 as such damages against the master. As punitive damages, the master was required to pay $1,500, while the servant was only held liable for $300. Under the authority of Rhame v. City of Sumter, 113 S. C., 151; 101 S. E., 832, the plaintiff’s verdict was for $700 as actual damages, and $1,800 as punitive damages. The order of Judge Rice on the motion for a new trial made the judgment, when the remission was made by the plaintiff, one for only $200 actual damages against both defendants, jointly, and $1,800 as punitive damages, apportioned between the two defendants, with $1,500 against the master and $300 against the servant.
The appellants insist that, even as reduced, reformed, and corrected, the verdict of the jury cannot stand under the cases cited by them, since the amount of damages to be paid by the railroad company is in excess of *135 the sum required of the agent. As stated, we do not think the authorities referred to.support that proposition.
There is, however, one case which seems to support the contention of the appellants; namely, Jenkins v. Southern Railway Co., 130 S. C., 180; 125 S. E., 912 (not the same “Jenkins” case cited above). JJie respondent has practically conceded that this case sustains the position of the appellants, and accordingly his attorneys have asked and obtained the leave of this Court to review and criticize it.
In Jenkins v. Southern Railway Co., the suit was for malicious slander against the railway company and its station agent, Cooper. The verdict was in favor of the plaintiff for $2,000 against the railway company and $150 against the agent.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Mr. Justice Brease.
The plaintiff-respondent, a newsbutcher, employed by the Union News Company, brought suit against the defendants Atlantic Coast Rine Railroad Company and Brown and Dor *132 sey, two of the agents of the Railroad Company, engaged in its police department. Plaintiff alleged that Brown and Dorsey went into' a car, where he had his containers of merchandise, and forced him to open these, charging plaintiff with having contraband liquor in his possession; that the officers had no warrant authorizing the search, but that it was done by threats that they would get a warrant of arrest if plaintiff did not submit, and that under this threat he allowed them to open and search through the containers; that the officers cursed and abused him, and detained him from his business and in their custody; that the torts alleged were willful and wanton.
The defendants admitted the search of plaintiff’s containers, and that they had no warrant therefor, but alleged that the search was made with the consent of the plaintiff, and denied that any profane language was used, that any tort was committed, and that any damage occurred. It was admitted that no whisky was found in plaintiff’s possession.
The cause was heard before his Honor, Circuit Judge H. F. Rice, and a jury. The verdict was in favor of the plaintiff, acquitted Brown, and was against the defendants J. A. Dorsey and Atlantic Coast Dine Railroad Company, and was in the following language:
“We find for the plaintiff $1,500 punitive, $500 actual damage against the A. C. D. R.' R. Co.; $300.punitive damage and $200 actual damage against J. A. Dorsey.”
The defendants Atlantic Coast Dine Railroad Company and Dorsey moved for a new trial. Judge Rice, in disposing of this motion, stated the questions raised before him, and discussed these in an able manner. His order will be reported in full.
The effect of Judge Rice’s order was to grant a new trial, unless the plaintiff remitted of the verdict in his favor the sum of $300 of the actual damages found for him against the railroad company, thereby making the verdict only $200 actual damages against both defendants jointly, and $1,800 *133 punitive damages, apportioned between the two defendants, with $1,500 thereof against the railroad company, and $300 against the defendant Dorsey.
The defendants Dorsey and Atlantic Coast Dine Railroad Company have appealed to this Court from the result in the lower Court, and bring five exceptions for our consideration.
Three of the exceptions (3, 4, and 5), relate to the same matters, and will be considered together. The contention of these exceptions is that the verdict against the railroad company, the master, should not be permitted to stand in a greater amount than the verdict against Dorsey, the servant.
We have been greatly- impressed by the strong arguments submitted by both the counsel for the appellants and the respondent. Counsel for the appellants, to- sustain the position taken, cites the following cases decided by this Court: Jenkins v. Railroad Co., 89 S. C., 408; 71 S. E., 1010. Sparks v. A. C. L,. Railroad Co., 104 S. C., 266; 88 S. E., 739. Jones v. Southern Railway Co., 106 S. C., 20; 90 S. E., 183. Beauchamp v. Winnsboro Granite Corporation, 113 S. C., 522; 101 S. E., 856. Durst v. Southern Railway Co., 130 S. C., 165; 125 S. E., 651. We shall not undertake now to review fully all these cases. Dater in this opinion we shall refer to some of them in consideration of certain matters.
At this time, we think it only necessary to say that, in so far as those cases are applicable to the main proposition we have before us at this time for determination, this one important principle runs through all of them, to wit: That, when the master and the servant are sued together for the same act of negligence or willful tort, and the master’s liability rests solely upon the servant’s conduct, a verdict against the master alone is illogical and cannot stand. This seems to us to be a reasonable and proper rule, for it is an inconsistent declaration on the part of the Court to say that, while the servant is without blame in his conduct, *134 yet, because of that same conduct, the master is to be held blamable.
The facts in the case at bar and the verdict rendered do not, however, bring the cause within the line of the principles announced in any of the cases cited by the appellants and discussed by us. To the contrary, we think this case is readily distinguished from each of the cases mentioned. In the case here, one of the servants was not acquitted; the appealing defendants, sued together, for the same tort, the one as servant of the other as master, were both convicted of the wrongs charged against them. Since the servant, found guilty, was acting about the master’s business, and the jury found that the servant was guilty of the willful torts charged against him, it necessarily followed, by our cases, that the master as well as the servant was liable to the plaintiff in damages. But the jury, by its verdict, said that the railroad company, the master, should pay more money as damages, both actual and punitive, than the amount required to be paid by Dorsey, the servant. The verdict assessed only $200 as actual damages against the servant and $500 as such damages against the master. As punitive damages, the master was required to pay $1,500, while the servant was only held liable for $300. Under the authority of Rhame v. City of Sumter, 113 S. C., 151; 101 S. E., 832, the plaintiff’s verdict was for $700 as actual damages, and $1,800 as punitive damages. The order of Judge Rice on the motion for a new trial made the judgment, when the remission was made by the plaintiff, one for only $200 actual damages against both defendants, jointly, and $1,800 as punitive damages, apportioned between the two defendants, with $1,500 against the master and $300 against the servant.
The appellants insist that, even as reduced, reformed, and corrected, the verdict of the jury cannot stand under the cases cited by them, since the amount of damages to be paid by the railroad company is in excess of *135 the sum required of the agent. As stated, we do not think the authorities referred to.support that proposition.
There is, however, one case which seems to support the contention of the appellants; namely, Jenkins v. Southern Railway Co., 130 S. C., 180; 125 S. E., 912 (not the same “Jenkins” case cited above). JJie respondent has practically conceded that this case sustains the position of the appellants, and accordingly his attorneys have asked and obtained the leave of this Court to review and criticize it.
In Jenkins v. Southern Railway Co., the suit was for malicious slander against the railway company and its station agent, Cooper. The verdict was in favor of the plaintiff for $2,000 against the railway company and $150 against the agent. It is not stated in the report if the damages found were actual or punitive, but we assume, from the nature of the action and from the reading of the report, that they were for punitive damages, and, certainly, that they included damages of that character. The judgment of the lower Court in the case was reversed, and the case was remanded for a new trial; this Court holding that the railroad corporation could not be held liable in damages for a greater amount than that assessed against the agent. If the holding there made is to stand, both as to actual and punitive damages, then it must follow that the judgment in this case cannot be affirmed. We refer to this case hereafter as the Jenkins case.
Coming from the pen and mind of that indefatigable worker and most learned jurist, Mr. Associate Justice Cothran, concurred in by the able Mr. Associate Justice Marion, and that lawyer of pre-eminence, Hon. E. Marion Rucker, who acted in the case as an Associate Justice, the opinion in the Jenkins case should be thoroughly digested and well considered before one should question the principles there announced. The writer*of the opinion frankly conceded that prior thereto it had been repeatedly held in this state that, in some instances of joint trespasses, the jury could sever the damages and apportion them according to the degree and *136 nature of the offense committed by each defendant. He reviewed fairly and at length many of our decisions to show that this principle had been recognized and followed for many years. Emphasis was laid upon the fact that many appellate tribunals of other jurisdictions; including the Supreme Court of the United States, had held otherwise. Calling especial attention to the fact that the rule in South. Carolina was a departure from the rule of the common law, which fact had been admitted theretofore by some of the Judges of this state, the language of the learned jurist clearly indicates his own opinion that the holding of this Court has been erroneous, and that the conclusion of the United States Supreme Court is correct. But this candid admission was made: “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.”
With due respect to the learned jurists who decided the Jenkins case, we are of the opinion that, while the rule as laid down there should continue to.be enforced as to compensatory damages, it should be modified so as not to apply to punitive damages. We feel encouraged to take this position, not only because we deem- it to- be the rule of right,, but for other reasons. Among these is the one that so many óf the Judges of this Court expressed themselves favorably to our view, or views leading to our conclusion, prior to the- Jenkins decision; another, that the views of the learned late-Chief Justice Gary, as expressed by him in many of his. opinions, and in many opinions of other Judges with whom he concurred, give us assurance that, had he participated in-the Jenkins case, the majority opinion there would have been-the minority opinion of the Court. While he never passed directly on the point decided in that case, we are confident, from his expressions in other causes, that he would not' have indorsed the majority opinion rendered. Then we have-before us the clear and vigorous, if brief, dissent of Mr. *137 Justice Watts, concurred in by the later lamented Mr. Justice Fraser.
The reasons assigned by Judge Rice for his refusal to set aside the verdict for punitive damages are, really, entirely sufficient to support his order. Since his ruling is in conflict, however, with the decision in the Jenkins case, and for the reason that there has been a difference of opinion among the members of this Court heretofore as to the just rule which should be adhered to, concerning the matter at issue, and since most learned members of this Court still insist that the Jenkins opinion should not be overruled or modified, we deem it not out of place that we should state some grounds, occurring to us at this time, in addition to those mentioned by the learned Circuit Judge, and that we should refer tO' additional authorities, which make it clear to us that the action of the lower Court was correct.
This Court, of course, has great respect for the decisions of the Supreme Court of the United States, but, where those decisions are not binding as authority upon this Court, they are not to be taken as precedents, but are to be regarded only as guiding influences. It may not be amiss either to remind ourselves occasionally, as well as others who may be interested, that frequently this Court has positively refused to follow not only the view of the Courts of other states, but those of the highest Court in the land as well.
In the discussion of principles in causes involving the subjects of torts and exemplary damages, we should not overlook the important fact that, pertaining to these matters, the federal and South Carolina decisions are far apart. In tort actions, in the federal Courts, only one verdict and one damage is permissible against all defendants who are found to be guilty; while in our Courts, it has been held repeatedly that damages against joint tortfeasors may be apportioned. While the federal decisions have been to the effect that, before the master can be held liable for the willful tort of his *138 servant, there must be evidence that he had authorized or ratified the wrongful act; it has been frequently held in this state that the master is liable for the servant’s willful tort, when the servant is acting within the scope of his authority and duties, although there may not have been a direct authorization or ratification. Again, in the federal Courts, it has been held, or certainly indicated that it would be held, that, when two or more persons are sued in the same action for the same tort, evidence as to the wealth of but one of the defendants is not admissible; while in this state such testimony is admitted to be competent. When the differences in the respective viewpoints of the two jurisdictions have been carefully studied, we think it can be readily understood why the Supreme Court of the United States holds it improper to permit apportionment of punitive damages between principal and agent in tort actions, and why this Court should declare to1 the contrary.
Compensatory damages relate mainly to the situation of the injured party, the plaintiff generally. But he should not receive, nor should he be entitled to obtain, thereby more than sufficient recompense for his injuries— just enough to restore him to his former position, a sum only to make him whole. He, and he alone, usually is particularly affected in that regard.
Exemplary damages have relation to the injured party in only one respect, to vindicate his right, recklessly, willfully, maliciously, or wantonly invaded. They relate more to the situation of the wrongdoers, the defendants, usually. One of the chief purposes in awarding damages of this class is to punish the wrongdoer, not only to prevent by him a recurrence of the wrongful act, but to deter others from conduct of the same or similar kind. They are not intended for the sole good of the injured party. And not for the improvement of the disposition and character alone of the willful tortfeasor is it that our law has looked with favor upon the assessment of punitive damages under certain cir *139 cumstances. But the object is to protect every man, woman, and child from those who' consciously disregard the rights of their fellows. It follows that the state, as the guardian and protector of the rights of her citizens, is therefore interested in the assessment of punitive damages, and that all the people may look to the law of their land tO' defend them from wrongful invasions of both their personal and property rights.
Another reason for holding that it is not logical to permit the apportionment of actual damages is due to the outstanding fact that in many instances such damages may be easily measured in dollars and cents; it being ordinarily a matter of calculation only to estimate the value of time, loss of money, physicians’ bills, and many other items generally included in damages of that class. On the other hand, in the assessment of punitive damages, there is no exact monetary standard which can be used as a measure, and in assessment of such damages the main things to be considered are the character of the tort committed, the punishment which should be meted out therefor, and the ability of the wrongdoer to pay. The amounts which should be assessed as punitive damages, therefore, are properly left to the discretion of the jury, subject to the right of the trial Judge to approve or disapprove, as has been so often held by this Court.
The commonwealth, as well as the aggrieved party, has an interest in the matter of exemplary damages. This Court, as well as Courts inferior to this, have duties to perform to litigants and the people of the state. One of these duties, and one of very great importance, is to hasten the end to lawsuits. It was well said by Mr. Justice Cothran in Sumter Trust Co. v. Holman, 134 S. C., 412; 132 S. E., 811: “It is a proverb as old as the law that it is to the interest of the state that there be an end of litigation.” While this interest of the state must be at all times subordinate to that greater object of dealing out justice, it is undoubtedly true that a *140 speedy end of litigation aids materially in bringing to our people a greater respect for our laws and the Courts. It must be acknowledged that frequent mistrials have a tendency to discourage those who' believe in the greatness of jury trial and who desire an early conclusion to litigation. It it also a well-recognized condition that in our system of jury trial, where the verdict of twelve men must be unanimous, the defendant has a decided advantage in procuring a verdict in his favor or a mistrial in a cause. All of the twelve men on the panel must agree, not only that the plaintiff is entitled to recover, but they must be unanimous as to the amount he should receive, before the plaintiff can win his cause. If one juror insists that the defendant should have a verdict in his favor, or if he stands out for a sum unreasonably small in favor of the plaintiff, for either actual or punitive damages, he may force a verdict which meets his views and is to the interest of the defendant, or bring about a mistrial in the action. To require a jury to gO' further in a tort action, and to agree unanimously that two or more defendants, some rich and some poor, should be assessed an identical amount by way of exemplary damages, will only add to the already innumerable difficulties in securing verdicts in our Courts, and will postpone the conclusion of trials, without furthering justice.
There is another matter we think worthy of serious consideration, and which justifies our holding that the principal should sometimes he required to pay a larger sum as punitive damages than should be assessed against his agent. In some circumstances a tortfeasor cannot only be mulcted in damages on the civil side of the Court, but he may also be subjected to punishment in the Criminal Courts for a violation of the law of the State. In many tort actions instituted in our Courts the agent is an individual, while the principal is often a corporation. The individual who, in injuring willfully another, may have violated some criminal statute, may not only be forced to pay damages on the civil *141 side of the Court, but he might be required to suffer punishment other than the payment of a fine. The corporation, an artificial person, however, regardless of the tort inflicted by it, or the manner in which it may have been inflicted, even, in cases where a corporation may have directed the act, or may have subsequently ratified it, cannot be required to do more than pay out money. To follow the reasoning in the Jenkins case to its last analysis would amount to saying that some impecunious individual, agent of a wealthy corporation, for a willful tort committed by him, would not only have to pay the same amount of money damages as that required of his corporate employer, but, in addition thereto, the agent might have to suffer punishment more severe than the payment of money, while the corporation could escape with only pecuniary loss, and that in no greater amount than the sum assessed against its agent. Certainly, in instances where the law of the land has been purposely evaded or positively infringed by an artificial person, through one of its agents or servants (the only way in which a corporation may act), when this invisible person cannot be physically touched, such artificial creation should be required, in the only way in which the law is able to reach it, to be made to suffer punishment sufficient to meet the offense.
The controlling factor of decision in the majority opinion in the Jenkins case, 130 S. C., 180; 125 S. E., 912, was the consideration, in relation to the judgment, of the master’s “right to be reimbursed by the servant for the damage he is called upon to pay on account of the servant’s negligent act.” In support of this position, the opinion cites Sparks v. R. Co., 109 S. C., 145; 95 S. E., 344, Jones v. R. Co., 106 S. C., 20; 90 S. E., 183, and Sparks v. R. Co., 104 S. C., 266; 88 S. E., 739, cases also relied upon by the appellants. The test applied was the question: “How is it possible for the master to. exercise his right of reimbursement, with a verdict limiting the liability of the servant * * * obstructing his path?” It is again contended, following *142 the viewpoint in the Jenkins opinion, that the existence of the right of reimbursement is hostile to the finding of separate verdicts against master and servant where the tort complained , of was that of the servant alone.
To establish the liability against the defendant corporation, the plaintiff alleges the tort of the agent, without claim that the master authorized, participated in, or ratified the tort. It is sufficient for plaintiff to show even as a basis of punitive damages, that the servant was acting within the scope of his employment. The master’s responsibility for'the servant’s acts, whether negligent or willful, follows ag a matter of law. Quinn v. R. Co., 29 S. C., 381; 7 S. E., 614; 1 L. R. A., 682; Cobb v. R. Co., 37 S. C., 194; 15 S. E., 878; Rucker v. Smoke, 37 S. C., 377; 16 S. E., 40; 34 Am. St. Rep., 758; Skipper v. Clifton Mfg. Co., 58 S. C., 143; 36 S. E., 509; Reeves v. R. Co., 68 S. C., 89; 46 S. E., 543.
The rule is different in the Federal Courts, where it is held that a verdict for punitive damages will not be sustained against the master, unless there is proof to implicate the master in the agent’s act. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S., 101; 13 S. Ct., 261; 37 L. Ed., 97.
In Schumpert v. So. R. Co., 65 S. C., 332; 43 S. E., 813; 95 Am. St. Rep., 802, the position was taken, and strongly urged on behalf of the appellant railroad corporation, that “there is no joint liability unless the master directs or is .present, actively co-operating with the servant in the commisison of the tort.” In support of this contention, the argument, which seems quite closely paralleled by the reasoning in the Jenkins’s opinion, was made, suggesting the matter of contribution as presenting a difficulty in the way of holding the master and servant jointly liable. After some examination of the authorities cited to support appellant’s position, the opinion decided the point against the objection, quoting and adopting the expression on the subject of contribution in .Cooley’s work on Torts. Following this con *143 sideration and review of the authorities, in delivering the unanimous opinion of the Court, Mr. Justice Jones, said:
“* * * In the case of a railroad corporation, which owes important duties to the public or those affected by its operation, and which cannot act, except through agents, there is the strongest reason for holding that with respect to acts done in its service by the agents within the scope of their employment, the corporation is present acting through its agents. ‘Qm facit per alinm facit per sed The servant is liable because of his own misfeasance or wrongful act, in breach of his duty to so use that which he controlled as not to injure another. The master is liable because he acts by his servant, and is therefore bound to see that no one suffers legal injury through the servant’s wrongful act done in the master’s service within the scope of the agency. Both are liable jointly, because from the relation of master and servant they are united or identified in the same tortious act resulting in the same injury.”
Conclusions from the Schumpert case, are: (1) The liability of both company and agent to respond to the person injured by the wrongful act of the servant is not qualified or limited, in any respect, by the rights or remedies of the company and agent as between themselves. (2) The rights and remedies of company and agent, in respect to each other, are neither enlarged nor restricted by a verdict finding a joint liability against them in favor of the person injured; the one, who is not in morals a wrongdoer, may call upon the other, who alone is the real wrongdoer, for indemnity.
In Logan v. R. Co., 82 S. C., 522; 64 S. E., 515, Rookard v. R. Co., 84 S. C., 190; 65 S. E., 1047; 27 L. R. A. (N. S.), 435; 137 Am. St. Rep., 839, and Jenkins v. R. Co., 89 S. C., 408; 71 S. E., 1010, it was stated a judgment on the merits in favor of a lessee railroad company would bar an action against the lessor for the same cause, because the liability of the master is predicated upon that of the les *144 see; this being summed up in the Jenkins decision, above cited, as follows:
“In other words, if the operating company, the one that actually does the injury, is held not to be liable, it follows that the lessor, upon whom the law imposes liability only for the acts of the lessee, cannot be liable.”
In Sparks v. R. Co. (the first appeal) 104 S. C., 266; 88 S. E., 739, the verdict exonerated from blame the conductor, through whom the tort is charged; it held the railroad, however, to liability. The Court in reversing the judgment against the corporation, said: “There is only one servant, one intent, and one act, and the case is a pure tort.” The opinion further pointed out that this act and intent, which were the two facts to be established against the company, “were traceable * * * only through the conductor and therefore the verdict holding that he was not responsible in intent or act must be held to have the same result in respect to the corporation. There is no discussion or suggestion in this opinion in anywise relating to the master’s right of reimbursement, or the rights or remedies of company and agent, as between themselves.
In Jones v. R. Co., 106 S. C., 20; 90 S. E., 183, the railroad company was sued with three of its agents and servants. The verdict was against the company alone. Remarking that the verdict was illogical and could not stand, Mr. Justice Hydrick also commented:
“It would be unreasonable to say that the servant did no wrong, but nevertheless his master is liable, when the only wrong charged against the master is that of the servant.”
In Sparks v. R. Co. (the second appeal) 109 S. C., 145; 95 S. E., 344, the contention was made that a new trial of all the issues should have been had just as if there had been no former trial, notwithstanding the verdict at the former trial that the conductor was not liable for the tort charged against him. It was held that the rights of the parties in *145 this respect had been determined by the former appeal. In stating this conclusion, Mr. Justice Hydrick said:
“* * * The Circuit Court correctly ruled that the matters involved in the judgment in favor of Jones were res adjudicada, and therefore Jones and his alleged wrongful acts were out of the case, and the company could not be liable for them. In fact, it had been finally adjudicated that Jones had done no wrong. It necessarily follows that the company had done no wrong through the agency of Jones.”
As additional and supplemental grounds for the conclusions stated in the two opinions last cited, Mr. Justice Hydrick commented in the Jones case that the company, by reason of the verdict which had acquitted the servant of having done any wrong, would be deprived of its remedy against the offending servant or servants because the judgment would be a bar to an action by the company against them. In the Sparks case it was similarly commented:
“Moreover, * * * it is perfectly clear that the company will be deprived of that right [to'compel the servant to pay the judgment] 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 plaintiff and as between him and the company, it is res adjudicata that he has done no actionable wrong.”
In Ilderton v. Charleston Consolidated Ry., 113 S. C., 91; 101 S. E., 282, it was held, by a divided opinion, that the case should have been continued, as the motorman O’Quinn, who was the' only witness by whom the railroad could make out a defense, was absent in the military service. Mr. Justice Hydrick said that the absent agent, although not a party to the record, was deeply interested in the event of the action, “for, as defendant’s liability to plaintiff was predicated solely *146 upon his conduct, his liability over to defendant will be affected by the judgment.” The opinion also quoted from Logan v. Ry., 82 S. C., 518; 64 S. E., 515, where it was said that the judgment, when the agent was vouched to defend, “would be conclusive as to the amount which the principal had to pay, and prima facie evidence of the liability of the agent to his principal therefor.” In the statement of these conclusions, there does not appear any suggestion, even, that the verdict in the action would either give or destroy “the master’s right to reimbursement” — a term which, in fact, seems first to have been tosed) in the recently decided Jenkins opinion.
It is evident that the additional reasons for the conelusion stated in the Jones and Sparks cases, as above set forth, were unnecessary to the decisions. It is elementary that the plaintiff in a tort action must stand upon the allegations of negligence set out in his complaint. If he has alleged his right of recovery upon the negligence of the servant, he cannot recover upon any acts of negligence that are not chargeable to the servant in the manner alleged. Illustrating the application of this principle, it was stated in Scott v. R. Co., 105 S. C., 385; 89 S. E., 1038:
“The defendant was called upon to answer certain specifications. * * * Under the pleadings it would have been justified in showing that it did injure the plaintiff, but in a different way than that alleged, and this would have been a complete defense.”
This would have been sufficient answer in the Jones and Sparks cases to the contention that a judgment could he held against the company, although the servant, on whose negligence the cause of action depends, had been cleared from responsibility.
In view of the conditions mentioned, it cannot be considered that the discussion of the collateral effect of the judgment was a real factor in the determination of the Sparks and Jones cases. The value of the suggested reason, *147 that the judgment found in such actions should be consistent with the master’s right of reimbursement, must therefore be viewed from the standpoint which is so well declared by Chief Justice Marshall, in the notable case of Cohens v. Virginia, 6 Wheat. 264; 5 L. Ed., 257:
“It is a maxim, not, to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of .this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
While it must be considered, under the principle declared in Cohens v. Virginia, above cited, that the authority of the Sparks and Jones cases is not binding in 'this connection, yet the respect which is due such expression of opinion, especially as they were later adopted as a basis for the Jenkins decision, requires that this feature be given substantial consideration. This brings up primarily the question of the legal relations, rights, and remedies of the various parties inyolved, where an injury is occasioned by the wrongful act of a servant.
The light furnished by the authorities on this subject is of material assistance in helping to decide whether, the master’s right to call upon the agent for indemnity should be deemed a determining feature, in passing upon the rights of the injured person in an action which undertakes to hold both master and servant to responsibility.
In Cooley’s work on Torts, which has been mentioned as the authority mainly relied upon as a basis of decision in the Schumpert case, a very clear statement is made at pages 167 and 168 (2d Ed.) :
*148 “The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as .between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.
“A case in point is where a railroad company is made to pay damages for an injury caused by the carelessness of one of its servants. Here the injured party may justly hold both the company and its servants to responsibility; but the actual wrong, so far as it is one in morals, is on the part of the servant alone, and the company is holden only through its obligation to be accountable for the action of those to whom it entrusts its business. As between the company and its servant, the latter alone is the wrongdoer, and, in calling upon him for indemnity, the company bases no claim upon its own misfeasance or default, but upon that of the servant himself.
“On the other hand, suppose the servant be directed by the officers of the company to do a certain act which it turns out they had no right to do, and for doing which he is made to pay damages. * * * If the act directed was one he had reason to suppose was legal, and he obeyed directions on that supposition, it would ill become the railroad company to demand that he be treated as a wrongdoer when called upon to indemnify him against the consequences of the act its officers had directed. In such a case the servant is not in morals a wrongdoer at all, and his claim to indemnity would be based upon a faithful obedience to orders *149 which he had a right to presume were rightful, nothing to the contrary appearing.”
Other leading authorities, which treat of the relations, rights, and remedies of the parties in such situation express in substance the same consideration. Thus in Rabatt’s Master and Servant (2d Ed.), Vol. VIR p. 8011, it is stated:
“There can be no doubt as to the proposition that a servant is directly liable to his master for any damage occasioned by the servant’s negligence or misconduct, for which the master is liable to another. As between the master and a stranger, the servant represents the master, and the master is answerable for the servant’s acts under the doctrine of respondeat superior. But this maxim does not apply as between master and servant, whose liability is based upon his contract. He is bound to indemnify the master for damages resulting from his failure to perform the duty which he owes to the master in every case.”
In Shearman & Redfield on Negligence (6th Ed.) Vol. 11, p. 705, it is said:
"A servant is liable to his master for any damage, of which the servant’s want of ordinary care and diligence in his work, or want of such skill as he had induced in the master to believe that he possessed, is the proximate cause. And if the master' is obliged to pay damages to a stranger for negligence of the servant, in which the master had no personal share, he is entitled to recover over against the servant.”
In Freeman’s notes on this subject, in 16 Am. St. Rep., 255, stating the reasons justifying recovery in actions to enforce indemnity, it is further said:
"In each of these cases the party seeking indemnity has been guilty of no personal wrong, actual or presumed, and no principle of public policy forbids the enforcement of indemnity in his favor.”
*150 In a leading and often cited case, Oceanic S. N. Co. v. Compania T. E., 134 N. Y., 461, 467; 31 N. E., 987, 989; 30 Am. St. Rep., 685, 689, in summing up conclusions based on a review of various authorities and cases, the Co rt said:
“* * * One who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not. * * * The right to in' enmity stands upon the principle that every one is responsible fof the consequences of his own negligence, and, if another person has been compelled (by the judgment of a. Court having jurisdiction) to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him.”
See, also, Shearman & Redfield on Negligence (6th Ed.), Vol. 1, pp. 43 — 55; Lowell v. Boston & L. R. Co., 2 Pick. (Mass.), 24; 34 Am. Dec. 33, 38.
The effect that should be given the first judgmem in an action subsequently brought by the defendant, who had to pay the judgment, against the other defendant through whom the liability was established, is also pointed out by other leading authorities.
In 34 Corpus Juris, 1032, the rule is stated:
“A judgment is conclusive upon a person responsible over, in so far as the issues actually litigated in the action are identical with the issues involved in a' subsequent action against such person by defendant in the first action. While the judgment will be conclusive on him so far as concerns the facts of the rendition of the judgment, its amount, and the cause of action on which it was rendered, it will not determine the question whether he is in fact responsible over, nor will it preclude him from setting up any defenses which, from the nature of the action or pleadings, he could not have interposed in the first action had be been a formal party to it. Also the fact that he defended the action does not render him liable to plaintiff for the amount of the judgment.”
*151 To the same effect may be cited the following authorities: 23 Cyc., 1270-1274; 15 R. C. R, 1021; Black on Judgments (2d Ed.) pp. 864-866; note, supported by extensive citations, in 40 L. R. A. (N. S.), pp. 1174-1176; Burley v. Compagnie De Navigation Francaise (C. C. A.), 194 F., 335 (syllabus); Keokuk & W. R. Co. v. State of Missouri, 152 U. S., 301; 14 S. Ct., 592; 38 L. Ed., 450 (syllabus), “the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”
In giving effect to the foregoing considerations, in Oceanic S. N. Co. v. Compania T. E., 134 N. Y., 461, 469; 31 N. E., 987, 989; 30 Am. St. Rep., 685, 690, the Court held:
“The judgment [if obtained against both master and ser vant] would not necessarily have determined as between them, whether either was or was not primarily liable, because that question could not have been litigated in the first action, at least it could not have been without the consent of all the parties to it, and of the trial Court, and then only through the aid of a special verdict or of a special ñnding. * * * In the case at bar, the judgment of the Circuit Court is not conclusive evidence of the liability of the defendant to the plaintiff, nor would it have been, had both been defendants in that judgment. * * * Whether, as between these litigants, the defendant is primarily liable for the damages occasioned by the injury to Cleary, must be determined by evidence outside of the record [in the first action].”
Similarly, in Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co. (C. C. A.), 215 F., 32, 35, Judge Woods, formerly an associate Justice of the South Carolina Supreme Court, made the following comment:
“It is perfectly clear that plaintiff’s demurrer to the evidence could not be sustained on the ground that a judgment in the case of Benning against the steel company was con- *152 elusive of the liability of the bridge company to the steel company under the notice to the bridge company that it would be held responsible for any recovery in favor of Benning. That judgment was conclusive as to all matters necessary to Benning’s recovery. * * * But under the general rule the judgment was not conclusive as to matters not necessary for Benning to prove as a condition of his recovery against the steel company. Note to Baltimore & O. R. Co. v. Howard County, 40 L. R. A. (N. S.), 1172.”
Under the foregoing authorities, the matters included in the adjudication, and therefore the particulars in which the judgment may be regarded as conclusive, are : (1) The liability of the corporation master to respond in damages for the injuries complained of in the action, as resulting from the act of the agent within the scope of his employment; (2) the negligent and willful tort of the agent in consequence of which the present judgment was procured; (3) the amount of damages caused by the tort of the servant, for the payment of which the master could be justly held responsible by the injured person.
In other matters, the present judgment could not be regarded as conclusive in an action for indemnity subsequently brought by one defendant against another. Thus the amount of indemnity recoverable would be limited, notwithstanding the judgment, to the payment actually made in settlement of the claim of the injured person. Smith v. Foran, 43 Conn., 244; 21 Am. Rep., 647. Also, as was said in Oceanic S. M. Co. v. Compania T. E., above cited:
“The judgment would not necessarily have determined [as between the two defendants in the first action] whether either was or was not primarily liable, because [under our practice] that question could not have been litigated in the first action.”
Then too, so far as punitive damages based on willfulness are concerned, there might arise the question whether any *153 principle of public policy would forbid the enforcement of the indemnity. It was said in Watts v. R. Co., 60 S. C., 67; 38 S. E., 240, that punitive damages, in addition to compensating for the willfulness, with which the private right was invaded, were intended to serve “as a deterring punishment to the wrongdoer and as a warning to others.” Would the object of the assessment of punitive damages be accomplished if the defendant, against whom the “pecuniary mulct” is imposed, should evade its effect by calling on another for indemnity? We have not found any cases, either in our own researches, or in any of the authorities cited in support of the view expressed in the Jenkins opinion, in which the consideration of this question is indicated.
It is sufficient to say that in the present case the sole issue under the pleadings is the plaintiff’s right of recovery against the defendants. He asked both actual and punitive damages. The answer, in which the defendants joined, makes complete denial of liability. The proof connected the defendant Dorsey’s act with the injury. It was not necessary for plaintiff to go beyond this, or to show that the corporation authorized or otherwise actively participated in the tort. The test of liability against the railroad was whether Dorsey was acting within the scope of his employment. Whether he was acting under instructions, or whether he was disobeying instructions, would not have been a defense either for himself or for the company. The company undertook to defend, instead of disavowing, the agent’s act. The agent was kept in the employment of the company; and it is not to be supposed that he would volunteer evidence to increase the damages against the company by undertaking to place the primary responsibility for his acts upon superior officers of the company.
The relations, rights and remedies of company and agent, as between themselves, would ordinarily involve matters of general rules and regulations of the company, special instructions, customary practices concerning the handling of *154 the business in which the agent was engaged, and also, the degree of care, skill, and good judgment that could properly be expected of the agent under all the conditions of his employment. It might happen, for instance, that the injury was caused through the unskillfulnes or inexperience of the agent. In an action by the injured person, this could not have been set up as a defense, either for the agent or for the master; but, as between master and agent, if the master failed to sufficiently instruct the agent as to his duties, or if, with knowledge of the inexperience and unskillfulness of the agent, the master should require him to do work for which he was unfit, it is manifest that the agent, rather than the master, might be justified in calling upon the other for indemnity on account of 'the damages he had to pay the injured person.
These conditions make it necessary to consider each action as standing on its own base. The defendants upon whom the verdict imposes liability are left free to take subsequent action, without their rights or remedies being curtailed. This conclusion is in full accord with the declaration of the Court in Schumpert v. Railway Co., and we are unable to see how it is hostile in any degree to a proper consideration and application of the doctrine of respondeat superior, or the theory of the master’s right to call upon the servant for indemnity on account of- the servant’s negligent or willful act.
It is commented in the majority opinion in the Jenkins case that the overwhelming weight of authority is against the South Carolina rule allowing the apportionment of damages by separate verdicts against the tortfeasors joined as defendants in the action. Among the citations of authority supporting this statement, are noted Washington Gaslight Co. v. Lansden, 172 U. S., 534; 19 S. Ct., 296; 43 L. Ed., 543; Cooley on Torts; Currier v. Swan, 63 Me., 323; Lake Erie & W. R. Co. v. Halleck, 78 Ind. App., 495; 136 N E., 39; and Hall v. McClure, 112 Kan., 752; 212 P., 875; *155 30 A. L. R., 782. Mention of these particular authorities is made because of the light they give on the reasons for the position taken in the Jenkins opinion, that the South Carolina rule, because of its departure from the rule of common law, “should be confined to the precise condition which gave it birth.”
In Cooley on Torts (2d Ed.), p. 153, it is stated:
“To require the party injured to ascertain and point out how much of the injury was done by one person and how much by another, or what share of responsibility is fairly attributable to each as between themselves, and to leave this to be apportioned among them by the jury according to the mischief found to have been done by each, would, in many cases, be equivalent to a practical denial of justice. The law does not require this, but on the other hand permits the party injured to treat all concerned in the injury as constituting together one party, by their joint co-operation accomplishing certain injurious results, and liable to respond to him in a gross sum as damages.”
In the cases of Currier v. Swan, Lake Erie & W. R. Co. v. Halleck, and Hall v. McClure, it was held that the attempted apportionment of damages should be stricken out as surplusage and a joint judgment entered against all the defendants for the full amount of the verdict assessed in plaintiff’s favor. An extensive review of authorities supporting this position, including the citations of cases from various other jurisdictions, is made in Hall v. McClure, 112 Kan., 752; 212 P., 875; 30 A. L. R., 782, and the. note following at page 794.
It is manifest from the consideration of these authorities that the South Carolina rule, allowing apportionment of damages, must be regarded as more favorable to the de- ' fendants than the general rule which “compels each to assume and bear the responsibility of the misconduct of all.” It is equally manifest that the order of Judge Rice, in reducing the verdict for actual damages to a joint liability for *156 the amount found against the agent, is much more favorable to the defendants than the position taken in Hall v. McClure and other cases cited above, where, in giving application to the general rule, the attempted apportionment was stricken out as surplüsage and the plaintiff allowed to recover against all of the defendants the gross amount of the judgment found in his favor. The plaintiff was entitled to damages to the full extent of the injuries he had sustained; but, if effect be given, as it must be, to the doctrine of respondeat superior, the plaintiff could not have a greater verdict for actual damages against the corporation than the amount of damages which he suffered at the hands of the agent. The trial Judge, having to decide between striking out the attempted apportionment as surplusage (a matter which has never been passed upon in this State) or reducing the verdict, exercised his power of control over the finding of the jury, by granting a new trial nisi, which required the plaintiff to remit the excess above the amount of the verdict found against the agent.
But whatever the argument that might be made against the apportionment of actual damages, an essentially different situation arises in respect to the issue of punitive damages. The theory of punitive damages has been variously stated as “vindication of private right,” “punishment for wrong,” “deterring punishment to a wrongdoer,” and “a warning to others.” A verdict for punitive damages must therefore be regarded as a penalty or punishment. The material factors in determining the amount that should be assessed as punitive damages are: (1) The nature of the act complained of and the circumstances of willfulness and wantonness attending the act; (2) the pecuniary conditions of the defendants who are to be punished. The importance of this latter factor has been frequently pointed out in our decisions. Rowe v. Moses, 9 Rich. Law (43 S. C. R.), 423; 67 Am. Dec., 560; Burckhalter v. Coward, 16 S. C., 439; Elms v. So. Power Co. and Rosamond, 79 S. *157 C., 502; 60 S. E., 1110; Calder v. So. Ry. Co. and Pullman Co., 89 S. C., 287; 71 S. E., 841, Ann. Cas., 1913-A, 894. In discussing this subject in the Calder case, Mr. Justice Gary said:
“The reason of the rule, admitting evidence of the defendant’s wealth and pecuniary ability, rests in the consideration that a pecuniary mulct, which would operate as a sufficient punishment, to a man of small means, would be inadequate in the case of a person of great wealth, and what would be a proper penalty in the latter case would be excessive and immoderate in the former. The rule admitting such evidence is indeed, it has been said, a fair corollary of the rule of exemplary damages
It may also be noted that in the case of Elms v. So. Power Co. and Rosamond, supra, the action was brought against the corporation and its agent as joint tortfeasors for injuries occasioned 'by the negligent and willful tort of the agent Rosamond. It was held that testimony to show the wealth of the defendant corporation was responsive to the allegations of the complaint demanding exemplary damages.
Even where evidence concerning.the wealth of the defendants is not given, it has been said that such consideration is nevertheless a factor inseparably connected with the estimation of punitive damages. Thus, in Webber v. Town of Jonesville, 94 S. C., 189; 77 S. E., 857, Mr. Justice Hydrick stated:
“In estimating punitive damages, the jury have the right to consider the ability of the defendants to pay. And, while there was no testimony as to the wealth of any of the defendants, yet we know that juries consider such matters when they know the facts, even in the absence of testimony. * * * An amount which would be moderate punishment for the one might result in financial ruin to the other.”
In the Federal Court, a different rule prevails. Besides holding that proof to implicate the Master in the agent’s acts is required as a condition of imposing punitive damages, *158 it is further held that, in an action brought against several joint tortfeasors, evidence is not admissible as to the wealth of any of the defendants. The difference between the South Carolina and Federal position in this respect appears very clearly in Washington Gaslight Co. v. Lansden, 172 U. S., 534, 553; 19 S. Ct., 296, 203; 43 L. Ed., 543, 550, in which the'Salient points, appearing in the discussion, are the following :
(1) “Punitive damages are damages beyond and above the amount which a plaintiff has really suffered, :cmd they are awarded upon the theory that they are a punishment to the defendant.”
(2) “There is no justice in allowing the recovery of punitive damages in an action against several defendants, based upon evidence of the wealth and ability to pay such damages on the part of one of the defendants only.”
(3) “This rule,” it is said, “does not prevent the recovery of punitive damages in all cases where several defendants are joined. What the true rule is in such case is not perhaps certain.”
(4) “The Court cannot say to the jury [under the Federal rule, which the opinion distinguishes from the South Carolina rule] that the evidence of the wealth of the corporation is only received in regard to it and as furnishing a basis for a computation of exemplary damages against it. If received at all it must be received against all. the defendants, as but one verdict can be given against all who are found guilty, when in truth in regard to all of them but the corporation it is evidence which is absolutely incompetent.”
The inconsistency of the situation presented under the Federal rule is obvious. Damages awarded as punishment to the defendant must, in order to be fairly assessed, take into consideration his ability to pay. The fundamental character of such requirement is manifest by the statement in the Colder case: “The rule admitting such evidence is indeed, it has been said, a fair corollary of the rule of ex *159 emplary damages.” It is equally true, as stated by Justice Hydrick in the Webber case, “that juries consider such matters when they know the facts, even in the absence of testimony.” Yet, it would, quite evidently, defeat the theory and object of punitive damages, in addition to the injustice that it would cause, to let evidence of one defendant to the neasure of punishment imposed upon others. In consequence of these conditions, there is reflected in the Lansden case an uncertainty, which the Court refers to but does not undertake to clear up, as to the true rule that should determine the recovery of punitive damages in actions against joint tortfeasors.
The grounds of reasoning supporting the ruling of the Lansden case have become a matter of especial interest and importance in our consideration, because of the reliance placed upon this decision to support the conclusions expressed in the Jenkins opinion. In our review of the Jenkins decision, we face a position already taken by this Court, although by divided opinion, a continued advocacy of such viewpoint by the writter of the Jenkins opinion, based on earnestness of conviction and presented with great capability, and the background of the high authority of the United States Supreme Court. Yet, while these matters are due the highest consideration and regard, it cannot be overlooked that the viewpoint thus presented is altogether inconsistent with the policy of our former decisions, as indicated by the Elms, Calder, and Webber cases, above cited, as well as by the early rule concerning the apportionment of damages. To sustain the Jenkins opinion would be, in fact, to overrule and destroy this established line of decisions, because, as was clearly shown in the Lansden case, one defendant could not justly be held liable in punitive damages measured by the wealth of some other defendant. Either it must be placed within the province of the jury to find separate verdicts, or the rule permitting the consideration of evidence of the wealth of the defendants must go out of the *160 issue of punitive damages. There is no middle ground between these two propositions.
Having to decide between such alternatives, we cannot doubt that the policy of allowing separate verdicts is preferable. The rule of one verdict against all the defendants found guilty will almost always cause the entire punishment to fall upon one alone. The other defendants will then be freed and discharged from liability on the judgment, thus being enabled, notwithstanding the “example” of the verdict “for the public good,” to wholly evade the penalty and defeat altogether the ends of justice. The policy of separate verdicts, on the other hand, requires that, in fixing the amount of punitive damages, the pecuniary conditions of the defendants should be considered. One defendant may show small means; the great wealth of another may be shown; and in each instance the amount of the verdict may be considered by the jury, fairly and justly, from the sound standpoint of assessing such amouut of punitive damages as to operate as adequate punishment. The defendants are thus required to pay, each according to his own means. The enforcement of the judgment against one defendant does not relieve other defendants from their own responsibility to respond for willful tort.
The policy governing our decision in award of punitive damages is not changed because of the relationship of master and servant, under which liability is imputed to the master. The basis of holding the master liable for the misfeasance of his agent, is stated in Story on Agency, Par. 452, quoted with approval by Mr. Justice McGowan in Reynolds v. Witte, 13 S. C., 5, 18; 36 Am. Rep., 678, and again quoted m the discussion of the master’s liability for exemplary damages in Rucker v. Smoke, 37 S. C., 377; 16 S. E., 40; 34 Am. St. Rep., 758, as follows:
“In every such case the [master] holds out his agent as competent and fit to be trusted, and thereby, in effect, he *161 warrants his fidelity and good conduct in all matters within the scope of his agency.”
This furnishes the test of the master’s liability to respond for punitive damages, which is in no respect different, except as a jury may consider the matter in assessing the amount of damages, from the liability to respond on account of participation in the tort. It is held that the rule grows out of the relation of principal and agent, and makes- no distinction between corporations and individuals. The operation of the rule and the reason for its existence has probably never been better stated than in the case of Rucker v. Smoke, supra, where Chief Justice Mclver said:
"When one person invests another with authority to act as his agent for a specified purpose, all of the acts done by the agent in pursuance, or within the scope of his agency, are, and should be, regarded as really the acts of the principal. If, therefore, the agent, in doing the act which he is deputed to do, does it in such a manner as would render him liable for exemplary damages, his principal is likewise liable, for the act is really done by him. To apply this doctrine to the facts of the case under consideration: If Smoke was appointed by Buyck as his agent to seize the mule covered by the mortgage, and he made the seizure which he was deputed to make in such a manner as would render him liable for exemplary damages, then Buyck would also be liable, for the reason that, both in law and in common sense, Buyck must be regarded as having himself done the act complained of.” '
The agent Dorsey was, in the present case, placed in his position of authority as railroad police captain and special officer, because of his employment by the railroad corporation. The penalty imposed on the corporation tempered, as remarked by the trial Judge, according to its ability to pay, is calculated to bring home to the responsible officers the need of exercising a more efficient control and supervision over the acts of its agents.
*162 The substance of liability for punitive damages depends upon the proper ascertainment of an adequate penalty to have disciplinar)'- effect on the policies of the corporation, as represented and carried out by the acts of its agents.
It is contended, however, that, if the master’s right to call upon the agent for indemnity be not destroyed by the sepaate verdict and judgment, then no benefit can accrue to the agent, and that the entire liability, the Master’s as well as his own, would be cast upon the agent. The answer to this contention is that, when the Master seeks indemnity against the agent in a subsequent action, new relations, rights, and remedies are involved, that present a different subject of consideration from that decided by the jury in the original action. Each action stands on its own merits as a suit at law. Questions of primary liability for the tort and matters of public policy affecting the right of enforcing reimbursement must be decided in the second action. They have no place in the first. It is the function and duly of the jury, if, in the action by the injured person, they should find a verdict against the defendants, to find the amount of damages, whether actual or punitive.
There are settled rules governing- our decisions ánd practice, which must be recognized as having been adopted for the purpose of serving generally the interests of a fair administration of justice, rather than to meet the possible hardships of a special situation. Under these rules, as has been repeatedly stated, the jury, in an action at law, are charged with the duty of deciding the facts and rendering a verdict on the issues presented by the pleadings. This Court has no power to review their findings or to disturb the verdict, unless legal error is evident. It is particularly a matter for the jury to decide what penalty or punitive damages will be calculated to serve as an adequate corrective influence, and how much damages should be imposed.
*163 The writer of this opinion regrets exceedingly that Mr. Justice Cothran “labored in vain” for so many years to bring about the conclusion which he finally prevailed upon getting this Court to adopt in the famous Jenkins decision. With all due deference to the distinguished justice, however: the writer is disposed to think that it would have been better for the administration of justice in this state if the labors of his learned brother had continued “in vain,” and had not been even temporarily successful. The writer admits, too, that there is some strength in the suggestion that it would be better perhaps not to “compass” the destruction of a decision “before the ink is dry upon that decision,” except, in instances where the decision destroyed is absolutely out of harmony with the holdings of this Court for many years, and when the effect of the decision is to bring about an upheaval in th,e administration of justice in our Courts. A decision of this kind the writer conceives the Jenkins opinion to be. When a decision should be overruled, however, for the excellent purpose of aiding “in bringing our people to a greater respect of our laws and the Courts,” this Court should not hesitate to overrule it, just as was done with the cases of State v. Sullivan, 127 S. C., 186; 121 S. E., 47, and Barron v. Liberty National Bank, 131 S. C., 443, 128 S. E., 414. In the two cases last mentioned, “hardly before the ink was dry” upon them, Mr. Justice Cothran wrote opinions encompassing their destruction, and the writer hereof gladly concurred therein, as will be shown by the recent cases of State v. Renew, 136 S. C., 302; 132 S. E., 613, and Antley v. New York Life Insurance Co., 139 S. C., 23; 137 S. E., 199.
The first and second exceptions relate to matters of testimony. Plaintiff, as a witness, on cross-examination, was asked, “Who told you to confer with Mr. Baker (one of the attorneys for the plaintiff) ?” He replied, “Mr. Smyre,” who, it appears, was in charge of the Union News Company *164 in Charleston, the employer of the plaintiff; and he made this further statement, “He didn’t exactly direct me to him, but he mentioned Mr. Baker and several other men’s names in Florence.” Questioned by his own attorney, plaintiff stated that he took up the matter with Mr. Smyre on the same day of the occurrence alleged in his complaint. Examined further, by counsel for appellants, he was asked this question, “He recommended that you take the matter up with a lawyer?” The reply was, “No; he said I could if I wanted to.”
Mr. Smyre, referred to by counsel for the appellants and the witness, was placed on the stand by the defendants. He was asked if he had recommended some lawyers, among them Mr. Baker, to the plaintiff. His reply was, “I did not; I did not know Mr. Baker; I had 'heard of him.” When Mr. Smyre made the reply, which we have quoted, Mr. Baker, of counsel for the respondent, made this statement, “It is immaterial whether Mr. Smyre mentioned me or not.” Judge Rice remarked that he did not think the matter was material.
The admission or rejection of testimony must be left very much to the discretion of the trial Judge. We do riot think there was any abuse of discretion in this instance. In the first place, it cannot be held that the testimony offered, was ruled out. Again, the testimony was not really a contradiction of the plaintiff’s statement, and we presume that it was offered for that purpose. It will be noted that the plaintiff did not testify that Mr. Smyre had “recommended” the attorney, Mr. Baker, to the plaintiff. The testimony of Mr. Smyre was to the effect that he had not made such recommendation. In any event, the testimony was not of any importance, and was a collateral matter.
*165 When the defendant Dorsey was a witness, he was asked, without objection, if he, as a police officer, at any time had occasion to locate whisky on the property of the railroad company, and, to that inquiry, he replied in the affirmative. Thereupon appellants’ counsel asked him this question, “Was it at that time or previous to that time an unusual thing for whisky to be found on the premises of the company ?” There was objection by the plaintiff, which was sustained. We are unable to see any harmful error in the refusal to admit this testimony, especially in view of the fact that the witness had already testified that previous to the occurrence alleged in the complaint he had had occasion to locate whisky on the property of the company.
It is the judgment of this Court that all exceptions of the appellants be overruled, and that the judgment of the Court of Common Pleas of Florence County be, and the same is hereby, affirmed.
Related
Cite This Page — Counsel Stack
140 S.E. 443, 142 S.C. 125, 1927 S.C. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-atlantic-coast-line-r-sc-1927.