Whitfield, C.
On the trial of this case, which was an action against the St. Louis & San Francisco Bailroad Company and T. P. Willis, the conductor, the jury returned a verdict in favor .of the plaintiffs against the railroad company for ten thousand dollars damages. But the verdict was silent as to the codefendant, Willis, the conductor. We think, on the authorities, that this amounted to a verdict exonerating Willis, to the same extent as if they had found a verdict for Willis. After the verdict, Willis made a motion, based on this theory, and the court sustained the motion, and entered a judgment discharging Willis from liability. The cross-appeal is prosecuted from this. We think the action of the court was correct on the matter involved in the cross-appeal.
The defendant company later made a motion in arrest of the judgment against it. The railroad company presents four defenses: First, that the firing of the pistol by the conductor, Willis, and the killing of the deceased, Sanderson, the husband and father of the plaintiffs, was an accident pure and simple, and hence that the company was not liable; second, that the firing of the pistol and [158]*158the killing of the deceased by the conductor, Willis, if intentional, was a thing not done in the line of his duty while engaged in the service of his master, ahd hence, being a thing outside the scope of his employment, and not in the line of his duty, the company was not liable; third, that the deceased was not a passenger, and hence the company was not liable; and, fourth, that the verdict and judgment exonerating Willis, the conductor, necessarily operated logically as an exoneration also of the master, and that the verdict for Willis and against the company was an inconsistent, irregular, and illogical verdict, and that the motion in arrest of the judgment, therefore, should have been sustained.
As to the first, the verdict of the jury must be taken as having established the fact that the act was not accidental.
As to the third defense, that the deceased was not a passenger, we think, also, that the evidence as to whether he was a passenger, under all the peculiar circumstances of this particular case as shown by the evidence, was a question of fact for the jury to determine, on proper instructions from the court. The defendant company got the benefit of instructions which told them in varying forms that if they believed from the evidence that the deceased was concealing himself so as to evade the payment of his fare, that he did not have the bona fide intention when he boarded the train of paying his fare, but was stealing a ride and attempting to evade his fare, they should find for the defendant company. Under these full instructions on the testimony in the case, the time of the ride being only about five minutes, we think the. fact that he was a passenger was properly submitted to the jury for their determination, and that the verdict consequently establishes the fact that he was a passenger. The authorities on this subject have been admirably collected by the counsel on both sides, whose [159]*159briefs are able and exhaustive, and we refer to them without further comment.
As to the second proposition, if it should be conceded that the act was not one in the line of the conductor’s duty, but was one wholly outside of the scope of his employment and the line of his duty, it is thoroughly well settled that' this beneficent principle, applicable in proper cases, that the master is not responsible for the acts done by the servant outside the line of his duty, and .not- in the service of the master, has no application whatever to • a case where the conductor, the alter ego of the company, himself inflicts the injury on the passenger. In Thompson on Negligence, vol. 3, § 3187, it is said:. “This calls up a plain distinction between the liability of a carrier of passengers for assaults or insults committed by his own servants upon his passengers and for similar wrongs committed by them upon trespassers or third persons. For such wrongs committed upon his passengers he will be liable in any event, whether in doing them his servant was acting within the scope of his employment or not, since they are a breach of his contract to carry his passenger in safety and with good treatment.” And in a masterly opinion by McClellan, C. J., Birmingham Ry. & Electric Co. v. Baird, reported in 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43, this doctrine is elaborately discussed and thoroughly vindicated, citing and reviewing a large number of authorities. Judge McClellan, speaking for the Supreme Court of Alabama in that case, says: “And it is of no consequence, when the wrong is committed by the carrier’s own servant, even that servant particularly charged with the duty of conserving the passenger’s well-being, en route, that the act bears no connection or relation with or to the duties of such servant to the carrier, and is not committed as an incident to the discharge of any duty, but is utterly violative of all duty, and apart and away from the scope of employment, as that term is [160]*160understood in the class of cases first above referred to. The carrier is liable in such cases, because the act is violative of the duty it owes through the ¡servant to- the passenger, and not upon the idea that the act is incident to a duty within the scope of the servant’s employment; and it is manifestly immaterial that the act may have been one of private retribution on the part of the servant, actuated by personal malice toward the passenger, and haying no attribute of service to the carrier in it. It is wholly inapt and erroneous to apply the doctrine •of scope of employment, as ordinarily understood, to such an act. Its only relation to the scope of the servant’s employment rests upon the disregard and violation of a duty imposed by the employm,ent. This is, beyond question, we think, the true doctrine on principle, and while, as indicated above, there are adjudications against it, the great weight of authority supports.it.”
He quotes in that opinion the following from Chief Justice Ryan in the case of Craker v. Chicago Railroad Company, 36 Wis. 657, 17 Am. Rep. 504: “But we need hot pursue the subject; for, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent, the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to another to commit the performance of his duty to a third, without responsibilty for the malicious conduct of the substitute in the performance of the duty. If one owe bread to another, and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the prin[161]*161cipal is responsible for the stone and its consequences. In Snell cases, malice is negligence.
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Whitfield, C.
On the trial of this case, which was an action against the St. Louis & San Francisco Bailroad Company and T. P. Willis, the conductor, the jury returned a verdict in favor .of the plaintiffs against the railroad company for ten thousand dollars damages. But the verdict was silent as to the codefendant, Willis, the conductor. We think, on the authorities, that this amounted to a verdict exonerating Willis, to the same extent as if they had found a verdict for Willis. After the verdict, Willis made a motion, based on this theory, and the court sustained the motion, and entered a judgment discharging Willis from liability. The cross-appeal is prosecuted from this. We think the action of the court was correct on the matter involved in the cross-appeal.
The defendant company later made a motion in arrest of the judgment against it. The railroad company presents four defenses: First, that the firing of the pistol by the conductor, Willis, and the killing of the deceased, Sanderson, the husband and father of the plaintiffs, was an accident pure and simple, and hence that the company was not liable; second, that the firing of the pistol and [158]*158the killing of the deceased by the conductor, Willis, if intentional, was a thing not done in the line of his duty while engaged in the service of his master, ahd hence, being a thing outside the scope of his employment, and not in the line of his duty, the company was not liable; third, that the deceased was not a passenger, and hence the company was not liable; and, fourth, that the verdict and judgment exonerating Willis, the conductor, necessarily operated logically as an exoneration also of the master, and that the verdict for Willis and against the company was an inconsistent, irregular, and illogical verdict, and that the motion in arrest of the judgment, therefore, should have been sustained.
As to the first, the verdict of the jury must be taken as having established the fact that the act was not accidental.
As to the third defense, that the deceased was not a passenger, we think, also, that the evidence as to whether he was a passenger, under all the peculiar circumstances of this particular case as shown by the evidence, was a question of fact for the jury to determine, on proper instructions from the court. The defendant company got the benefit of instructions which told them in varying forms that if they believed from the evidence that the deceased was concealing himself so as to evade the payment of his fare, that he did not have the bona fide intention when he boarded the train of paying his fare, but was stealing a ride and attempting to evade his fare, they should find for the defendant company. Under these full instructions on the testimony in the case, the time of the ride being only about five minutes, we think the. fact that he was a passenger was properly submitted to the jury for their determination, and that the verdict consequently establishes the fact that he was a passenger. The authorities on this subject have been admirably collected by the counsel on both sides, whose [159]*159briefs are able and exhaustive, and we refer to them without further comment.
As to the second proposition, if it should be conceded that the act was not one in the line of the conductor’s duty, but was one wholly outside of the scope of his employment and the line of his duty, it is thoroughly well settled that' this beneficent principle, applicable in proper cases, that the master is not responsible for the acts done by the servant outside the line of his duty, and .not- in the service of the master, has no application whatever to • a case where the conductor, the alter ego of the company, himself inflicts the injury on the passenger. In Thompson on Negligence, vol. 3, § 3187, it is said:. “This calls up a plain distinction between the liability of a carrier of passengers for assaults or insults committed by his own servants upon his passengers and for similar wrongs committed by them upon trespassers or third persons. For such wrongs committed upon his passengers he will be liable in any event, whether in doing them his servant was acting within the scope of his employment or not, since they are a breach of his contract to carry his passenger in safety and with good treatment.” And in a masterly opinion by McClellan, C. J., Birmingham Ry. & Electric Co. v. Baird, reported in 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43, this doctrine is elaborately discussed and thoroughly vindicated, citing and reviewing a large number of authorities. Judge McClellan, speaking for the Supreme Court of Alabama in that case, says: “And it is of no consequence, when the wrong is committed by the carrier’s own servant, even that servant particularly charged with the duty of conserving the passenger’s well-being, en route, that the act bears no connection or relation with or to the duties of such servant to the carrier, and is not committed as an incident to the discharge of any duty, but is utterly violative of all duty, and apart and away from the scope of employment, as that term is [160]*160understood in the class of cases first above referred to. The carrier is liable in such cases, because the act is violative of the duty it owes through the ¡servant to- the passenger, and not upon the idea that the act is incident to a duty within the scope of the servant’s employment; and it is manifestly immaterial that the act may have been one of private retribution on the part of the servant, actuated by personal malice toward the passenger, and haying no attribute of service to the carrier in it. It is wholly inapt and erroneous to apply the doctrine •of scope of employment, as ordinarily understood, to such an act. Its only relation to the scope of the servant’s employment rests upon the disregard and violation of a duty imposed by the employm,ent. This is, beyond question, we think, the true doctrine on principle, and while, as indicated above, there are adjudications against it, the great weight of authority supports.it.”
He quotes in that opinion the following from Chief Justice Ryan in the case of Craker v. Chicago Railroad Company, 36 Wis. 657, 17 Am. Rep. 504: “But we need hot pursue the subject; for, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent, the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to another to commit the performance of his duty to a third, without responsibilty for the malicious conduct of the substitute in the performance of the duty. If one owe bread to another, and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the prin[161]*161cipal is responsible for the stone and its consequences. In Snell cases, malice is negligence. Courts are generally inclining to this view, and this court long since affirmed it.” And he also quotes -the following from Elliott on Railroads: ‘ ‘ There is much apparent conflict among the authorities upon this subject; but we think some of it is due to the use of the term ‘scope of employment,’ or ‘line of duty,’ in a different sense in different cases, or to a failure to place the decision on the correct ground. It is not merely a question of negligence in such cases, nor is it a question strictly depending upon the scope of the servant’s particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as that relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employee or not. . . Either the company or the passengers must take the risk of infirmities of temper, maliciousness, and misconduct of the employees whom the company has placed upon the train, and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is, therefore, but just to make the company, rather than the passengers, take the risk, and to hold it responsible.” 4 Elliott on- Railroads, § 1638. ■
We approve this as the true rule in this character of cases. The supreme and paramount duty of the conductor, who is the master in such cases, is to protect the passengers from injury, and the absolute character of this duty excludes entirely the operation of the other principle, applicable in proper cases, that the master is not liable for the servant’s act, where that act is clearly not in the line of his duty and done outside the scope of his employment. It seems to us a perfectly sound rule, founded in the highest and most beneficent public policy.
[162]*162The only remaining defense is the technical one, founded in the rules of pleading and practice, to wit, that the verdict and judgment exonerating the conductor necessarily and logically resulted inevitably in the exoneration also of the master. The reasoning is that the master can only be responsible, in a case like' this, because the servant is, on the doctrine of respondeat superior. It is said with great ingenuity and ability that the master can only be derivatively liable; that is, he is liable, if at all, only because of the act of the servant, when that act makes the servant liable, and a verdict, as in this case, for the conductor, and against the defendant, is inconsistent, irregular, and illogical. The Texas Supreme Court, in Railway Company v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743, which was a case exactly like this, admitted that the verdict was apparently inconsistent, yet nevertheless said it presented no ground on that account for a reversal of a judgment against the company.
In the case of Railroad Company v. Clarke, 85 Miss. 697, 38 South. 97, this court followed the Texas Supreme Court, and rested its judgment on two grounds: First, that if it were assumed in such case that the. company and its servants were jointly liable, nevertheless the right of action which the plaintiff had was both joint and several, and that, though both were equally liable, the liability was based on distinct and different legal principles — the servant because of his personal trespass, and the company because of its failure to discharge its nondelegable duty towards the public regarding its custody and management of its dangerous instrumentalities, or, as here, in not having a competent conductor. And the court rests its judgment in the second place on our statute (section 4944 of the Code of 1906; section 4378 of the Code of 1892), which is in the following words: “In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of' sev[163]*163oral appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case. And when a judgment or decree shall be affirmed as to some of the appellants and be reversed as to others, the case shall thereafter be proceeded with, so far as necessary, as if separate suits had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly. Costs may be adjudged in such cases as the supreme court shall deem proper. ’ ’ This statute was construed in the case of Weis v. Aaron, 75 Miss. 138, 21 South. 763, 65 Am. St. Rep. 594. We there said: “When the action of the court below results in merely reversible error as-to one of the parties, the other, cannot assign here that error. ’ ’
We think this statute, with this construction placed upon it, is a perfect answer to the argument of learned counsel for appellant on the motion in arrest of judgment. The error assigned by the railroad company, that the verdict exonerating Willis, the conductor, was wrong, at the same time a verdict against the company was rendered, under our statute, and the construction referred to here is at most merely a reversible error as ’to Willis, not affecting the validity of the judgment against the railroad company. Besides all of which, it is further to be said that we have recently reviewed, on full consideration, the case of Clarke v. Railroad, in the case of Nelson v. I. C. R. R. Co., 53 South. 619, and approved and reaffirmed the doctrine of the Clarke case on this point, and we remain satisfied of the correctness of our conclusion on the grounds indicated. There are cases to the contrary, which are pointed out by the learned counsel for appellant; but those cases were decided in the absence, so far as they show, of any statute like ours on this subject. Our statute was manifestly intended to do away with the opposite rule, as one which would in many cases sacrifice the substantial rights of parties to [164]*164a mere rule of procedure, founded on too refined a basis for the practical administration of justice. In the case of Sellards v. Zomes, 5 Bush. (Ky.) 90, cited in Louisville Mail Company v. Barnes, 117 Ky. 860, 79 S. W. 261, 64 L. R. A. 574, 111 Am. St. Rep. 273, the court said: “The liability of joint trespassers is several, and any one or all of them may be sued for the entire wrong.”
Consequently since our statute of 1836, authorizing several judgments, and dismission or release of one or more who are sued, cannot per se release the others. .This construction of the Kentucky statute is exactly our construction of our statute. See, also, the elaborate notes to Louisville Mail Company v. Barnes, supra, and the note to Abb v. Northern Pacific Railway Company, 92 Am. St. Rep. 872. And see the opinion of this court in Bailey v. Delta Electric Company, 86 Miss. 634, 38 South. 354, where, in concluding the opinion, it was said: “This is more in- accord with justice and in better harmony with the principles of enlightened jurisprudence, which will not permit a party suffering a wrong to be deprived of his right to redress by any purely technical reason.”
Affirmed on appeal.
Affirmed on cross-appeal.
Per Curiam.
The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment of the court below is affirmed, both on the appeal and cross-appeal.