Nelson v. Illinois Central Railroad

53 So. 619, 98 Miss. 295

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Mames, C. J.,

delivered the opinion of the court.

While traveling over the line of railway owned by the Illinois Central Railroad Company, H. T. Nelson claims to have lost a suit case and contents, through the negligence of the company, valued at two hundred and twenty-seven dollars, or thereabouts, and the object of this suit is to compel reimbursement by the company. The cause is here on the pleadings, and the-case made is about as follows, viz.: Mr. Nelson alleges in his declaration that he procured transportation over the Illinois Central Railroad from Memphis, Tenn., to Durant, Miss. At the same time he purchased his railroad ticket, and from the same agent, Nelson alleges that he also purchased a sleeping car ticket entitling him to a berth on a sleeping car from Memphis to Durant; the sleeping car being attached to and being a part of the train. Nelson further alleges in his declaration that he boarded the train at Memphis, bound for Durant, at about 11:30 p. m., entered the sleeping car, and was assigned to “lower No. 4 in a oar named Saffola.” Nelson further alleges that he had with him a suit case containing articles of necessary apparel for the contemplated journey, and of the value, including the suit case, of the sum stated above; that when he retired he left the suit case and contents by the side of his berth, and on reaching his destination it was discovered that the case and contents were gone; and that because of the negligence, willful conduct, or gross negligence on the part of the company, etc., the case and its contents were lost. The railroad company filed the general issue and two special pleas. The first special plea was to the effect that Nelson instituted a suit on the same cause of action in the justice of the peace court in the state of Tennessee; that this court had full and final jurisdiction, and that the suit was instituted there in June, 1909, long prior to the bringing of the suit then on trial; that the suit brought in Tennessee was upon the identical cause of action, was instituted against the Pullman Palace Car Company, and resulted in a judgment against Nelson and in favor of the Pullman Company; that afterwards Nelson appealed the case from the judgment of the justice of the peace to the circuit court of the same county in Tennessee, this appellate court having full jurisdiction of the cause so appealed; and that court again rendered a judgment against Nelson and in favor of the Pullman Company. Wherefore it is claimed by this plea that the cause is res adjudicata and should be dismissed. The second special plea alleges that the suit should not be maintained because, at the time his baggage is claimed to have been lost or destroyed, Nelson was a general passenger, traveling upon an ordinary ticket, and his loss did not occur in an ordinary passenger coach of the railroad company, nor in the baggage car; that the suit case was never placed in the care or custody of any employe of the railroad company, and it did not have any notice, of the existence of the baggage; that Nelson went into a sleeping car of the Pullman Company, and paid to it a special consideration for additional accommodation and protection, and placed himself and his hand baggage specially in the custody and care of the employes of the Pullman Company; and that the baggage was then lost while plaintiff was in the care of the Pullman Company. To these two pleas a demurrer was interposed, the effect of which was to allege that neither of the pleas constituted any defense. The demurrers were overruled, and, Nelson declining to plead further, final judgment was taken, dismissing the declaration, from which judgment an appeal is prosecuted here.

It is our judgment that neither of the pleas offered by the railroad company presented any defense to the suit of Nelson, and the demurrer to both pleas should have been sustained. The agents and servants of the sleeping car company are undoubtedly the agents of the railroad company. The cars of the sleeping car company are attached to and become a part of the system of transportation used by the railroad company in carrying out its contracts of transportation. When a passenger is injured by any neglect on the part of the sleeping car company, and while a passenger on same, the railroad company is liable in the same way and to the same extent as it would be if the injury had occurred on one of its ordinary passenger coaches. As is said in the case of Railroad Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141: “The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping car company, whose cars are used by and constitute a part of the train of the railroad company, to throw off the duty of providing proper means for the same conveyance of those whom it has agreed to convey. 2 Kent, Com. (12th Ed.), 600; 2 Pars. Cont. (6th Ed.), 218, 219; Story, Bailments, §§ 601, 601a, 602; Cooley, Torts, 642; Wharton, Negl. (2d Ed.), § 627 et seq.; Chit. Carriers, 256 et seq.; and cases cited by the authors.” Because the railroad company adopts the sleeping car as a part of its train, uses it to carry out its contracts of transportation, and invites its passengers to go into and avail of its comforts when traveling upon its line of railway, the sleeping car company and the railroad company have no distinction so far as the 'passenger is concerned when he seeks redress against the railroad company for injury received through the negligence of the sleeping car company. But, because the railroad company may become liable for the negligence of the servants of the sleeping car company, it does not follow that.the sleeping car company may not also be liable severally and jointly. The passenger not only has a contract of transportation with the railroad company, but he also has a contract with the sleeping ear •company. By these two contracts each company imposes on itself the same duty of protection to the person and property of the passenger, and each may be sued separately, or both may be sued jointly. Every duty that the sleeping car company owes a passenger is also a duty that the railroad company owes; but the duty of the railroad and sleeping car company may not be the same when the injury results from the negligent operation of the train, as this seems to he a duty peculiarly assumed by the railroad. It is manifest that the same duty rested an the sleeping car company to protect the person and baggage of Nelson as was imposed on the railroad company, and the converse of this proposition is true. Both the sleeping car company and the railroad company had separate contracts with the passenger; each receiving from him an independent consideration. The sleeping car company was both the agent of the railroad company and also engaged in its own enterprise, taking a valuable consideration therefor.

While it is not alleged that this injury occurred in this state, it is not amiss to note that, by section 195 of the Constitution of 1890 of the state, sleeping car companies, are made common carriers and liable as such,. This simply shows that the laws of this state recognize that there may be an independent liability on the part of the sleeping car companies under their contract of carriage, as well as the agents of the railroad company. The negligence complained of was the loss of appellant’s baggage. The negligent failure of both companies to perform their duty to appellant resulted in a single and indivisible injury, for which either or both are liable. In such case, as is stated in the case of Walton, Witten &. Graham v. Miller, 109 Va. 210, 214, 63 S. E. 458, 460, 132 Am. St. Rep. 908, 911, these two companies are joint tortfeasors. As to when persons are joint tortfeasors, it is stated in that part of opinion to be found in the above-cited case, citing many authorities, that: “ ‘In respect to negligent injuries, there is considerable difference of opinion as to what constitutes joint liability. No .comprehensive general rule can be formulated which will harmonize all the authorities. The authorities are, perhaps, not agreed beyond this: That where two or more owe to another a common duty, and by a common neglect of that duty such other person is injured, then there is a joint tort, with joint liability. The weight of authority will, we think, support the more general proposition that, when the negligence of two or more persons concurs in producing a single indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action. ’ 1 Cooley on Torts (3d Ed.), p. 246.”

That the sleeping car company is liable for the loss of a passenger’s personal baggage, if it fail to exercise proper care to guard same, is settled by many authorities. Pullman Company v. Green, 128 Ga. 142, 57 S. E. 233, 119 Am. St. Rep. 368. That the railroad company is alike liable is equally well settled. See Nashville & Chattanooga Ry. Co. v. Lillie, 112 Tenn. 331, 78 S. W. 1055, 105 Am. St. Rep. 947. If both are liable, it follows that they are jointly and severally liable, and where the joint and several liability is conceded the controlling principles of law become easy of application. In the case of Pullman Company v. Kelly, 86 Miss. 87, 38 South. 317, this court held “that a. sleeping car company owes to all passengers whom it receives all the obligations and duties which a common carrier owes to passengers, except, of course, that a sleeping car company, not controlling the motive power, and not having the management of the train of which its car is a part, cannot be held liable to its passengers for injuries occurring to them by reason of any defect or failure in the machinery which furnishes the motive power, or by reason, of any want of care, miscarriage, or default in the management of the train; ’ ’ but, because it is the agent of the railroad company, ’the latter company is also liable for every neglect that makes the sleeping car company liable. In Cooley on Torts (2d Ed.), p. 1591, it is said that, where an injury is produced by joint tortfeasors, “the party injured may bring separate suits against the wrongdoers, and proceed to judgment in each, and that no bar arises as to any of them until satisfaction is received.” In the same authority, on page 157, it is said: “Whatever may have been the reason for proceeding at first against less than the whole, it is conceded on all sides that a previous suit against one or more is no bar to a new suit against the others, even though the first suit be pending, or have proceeded to judgment, when the second is brought. ’ ’ Of course, where there is but one injury, there can be but one satisfaction for that injnry; but until there is a satisfaction the injured party may bring as many separate suits for the injury as there a.re joint wrongdoers, and in the end elect to take the highest assessment of damage made by any judgment. Cooley on Torts (2d Ed.), p. 159; Marriott v. Williams, 152 Cal. 705, 93 Pac. 875, 125 Am. St. Rep. 87; French v. Boston Coal Co., 195 Mass. 334, 81 N. E. 265, 11 L. R. A. (N. S.) 993, 122 Am. St. Rep. 257; Cleveland, etc. Ry. Co. v. Hilligoss, 171 Ind. 417, 86 N. E. 485; 131 Am. St. Rep. 258.

The suit by Nelson against the sleeping car company in the state of Tennessee, resulting in a judgment in favor of the sleeping car company, cannot be used as a bar to this suit against the railroad company. Judgments conclude only parties and privies, and there is no such privity between joint tortfeasors as would allow one to plead in bar to a suit against him a judgment acquitting another of responsibility for tlie same act. Each is liable independently of the other, and the utmost that any joint tortfeasor can ask is that there be but one satisfaction allowed for the same and indivisible cause of action, and this the law guarantees. That a judgment in favor of one joint wrongdoer is no bar to a separate action against another was settled in this state by the ease of Railroad Co. v. Clarke, 85 Miss. 697, 38 South. 97. See also 24 Am. and Eng. Enc. Law (2nd Ed.), p. 765. In the Glarhe Case, supra, this court said: “The right of action which the appellee had was both joint and several, and each defendant was liable for the whole damage; . . . The appellee could have instituted suit for the entire amount of damage which he had suffered against either of the parties, or against both, as he chose to do. Piad the verdict been against both, this would neither have lessened nor increased the liability of appellant for the entire judgment. Nor is the fact that the jury, no matter by what motive actuated, failed to find a verdict against appellant’s codefendant in any wise prejudicial to the rights which may exist between appellant and its codefendant, growing out of the subject-matter of this suit.” There may be cases in which a judgment in a suit in which an agent or servant is a party may be conclusive for or against the principal; but we are only now interested in the pursuit of this question to an extent sufficient to say that, if there are such cases, this is not one of them.

Reversed aoid remanded.