Begin v. Liederbach Bus Co. Inc.

1 Reported in 208 N.W. 546. Action for personal injuries arising out of a collision between a motor bus and a street-car. Plaintiff sustained her injuries while a passenger on the former. The bus was owned and operated by defendant Liederbach Bus Company and the street-car by Minneapolis Street Railway Company. Defendant Bergeron was the chauffeur of the bus, his negligence being the only want of care charged against the bus company. The trial resulted in an unauthorized sort of verdict and it is to be regretted that the jury was not subjected to the "good practice" commended in Robyn v. White, *Page 86 153 Minn. 76, 79, 189 N.W. 577, and asked to "again retire and return a verdict unburdened" with unauthorized matter. The verdict was this: "We, the jury in the above entitled action, find in favor of the plaintiff and assess her damages in the sum of $8,500, eight thousand five hundred dollars. "Liederbach Bus Co. $4,250.00. "Minneapolis Street Railway Co. $4,250.00. "Frank Drake, Foreman." March 20, 1925, the separate motions of the bus and railway companies for a new trial were granted. May 20, 1925, judgment was entered, without notice, upon the verdict in favor of defendant Bergeron and against plaintiff. The bus company was then allowed to file a supplemental answer setting up that judgment in favor of its agent as a bar to the action as against itself. The next step was an order denying plaintiff's motion for the vacation of the judgment for Bergeron. Thereafter, on the pleadings, including the supplemental answer of the bus company setting up the Bergeron judgment as a bar, judgment was ordered for the bus company and against plaintiff. The case is here upon three appeals of plaintiff; one from the judgment for the bus company; one from the judgment for Bergeron; and one from the order denying plaintiff's motion to vacate that judgment. The opinion will dispose of all three appeals. The railway company is not a party to any of them. 1. Respondent's motion to dismiss the appeals, for omission from the printed record of the settled case, is denied. The record as it stands reflects enough of the proceedings below to enable us to pass upon the questions raised by appellant and dealt with herein. 2. The first thing to determine is the effect of the peculiar verdict. Was it in favor of defendant Bergeron? It was so considered below, hence the entry of judgment for him. Did the verdict authorize that judgment? It is hard to escape the logic of the proposition that if, on a single issue, the jury finds for the plaintiff and against two of three defendants, *Page 87 the other defendant is exonerated and the verdict is in his favor, even though he is not named therein. That conclusion seems particularly clear where the jury not only does not mention the third defendant but says that the other two shall pay all of the damages assessed. That is what they did here. In Doran v. C. St. P.M. O. Ry. Co. 128 Minn. 193,150 N.W. 800, a verdict "for the plaintiff and against" the one defendant who happened to be the employer of the other was considered as one in favor of the employe, although it did not mention him. In Webster v. C. St. P.M. O. Ry. Co. 119 Minn. 72, 137 N.W. 168, it was assumed, if not held, that a "verdict against the master alone must be treated as a finding in favor of the employee, although the verdict is silent as to him." Clay v. C.M. St. P. Ry. Co. 104 Minn. 1, 115 N.W. 949, is actually if not expressly to the same effect. These cases are in accord with the weight of authority. James v. Evans, 80 C.C.A. 240, 149 F. 136; San Antonio A.P. Ry. Co. v. McCammon (Tex.Civ.App.) 181 S.W. 541; Ivanhoe Furnace Corp. v. Crowder's Admr. 110 Va. 387, 66 S.E. 63; Lawson v. Robinson, 68 Kan. 737, 75 P. 1012; Manley Bros. v. B. M. Railroad, 90 Vt. 218, 97 A. 674; Howard v. Johnson, 91 Ga. 319,18 S.E. 132; Pittsburgh, C.C. St. L. Ry. Co. v. Darlington's Admx. 129 Ky. 266, 111 S.W. 360; Wabash R. Co. v. Keeler, 127 Ill. App.? 265. 3. We come now to the effect of the verdict for Bergeron on the case as against the bus company. The latter is liable under the rule respondeat superior or not liable at all. In such a case a verdict for servant and against master may be inexplicable and arbitrary. Compare Verlinda v. Stone Webster Eng. Corp.44 Mont. 223, 119 P. 573. But it is none the less a finding against the one asserted basis of liability, the negligence of the servant. While such a finding stands, it is nothing short of an arbitrary seizure of its property, for the private benefit of plaintiff, to hold the employer liable. There are many cases, some of which are cited above, holding properly enough that where the employer may have been found guilty of negligence other than that of his codefendant employe, a verdict for the latter does not exonerate the employer. But where *Page 88 the only possible fault is that of the employe, the "necessary effect" of a verdict exonerating him "is that neither defendant is liable." Stanger v. Thompson, 153 Minn. 488, 190 N.W. 897. Wilson v. Erickson, 152 Minn. 364, 188 N.W. 994, is to the same effect. The cases generally sustain that view. 34 C.J. 976. There are some to the contrary. See annotations in 9 L.R.A. (N.S.) 880, 30 L.R.A. (N.S.) 404, and L.R.A. 1917E, 1029. We agree that "the question carries its own answer; and it may be generally affirmed that if an act of an employe be lawful, and one which he is justified in doing, and which casts no personal responsibility upon him, no responsibility attaches to the employer therefor." New Orleans N.E.R. Co. v. Jopes, 142 U.S. 18, 12 Sup. Ct. 109,35 L. ed. 919. The holdings to the contrary are confessedly illogical. De Sandro v. Missoula L. W. Co. 48 Mont. 226, 136 P. 711. It is necessarily so, "since in cases where the servant's negligence is the sole cause of the accident the liability of the master is derivative and based upon the doctrine of respondeat superior." See annotation of Hobbs v. Illinois Cent. R. Co. in L.R.A. 1917E, 1023, 1029. So we conclude that the verdict, if allowed to stand, would exonerate not only Bergeron but also his employer, the bus company. 4. The motion to vacate the judgment for Bergeron was made upon the mistaken assumption that there was no verdict for him. That judgment was entered without notice to plaintiff or her attorneys. It may well be a case of the entry of judgment through "mistake, inadvertence, surprise or excusable neglect" which, under our statute (section 9283, G.S. 1923), vests in the district court the power to vacate within the period of one year from notice. That question was not presented to the court below nor its discretion in the matter invoked. We have considered remanding the case with a view to leaving the judgments open to further attack below by renewed motions to vacate. But the foregoing discussion is futile indeed if it has not shown the verdict to be so perverse as to require a new trial. "The jury in one breath both condemned and exonerated" both the bus company and Bergeron. "This was of course fatal to the verdict." Bell v. N.P. Ry. Co. 112 Minn. 489, 493, *Page 89 128 N.W. 829, 831. In such cases the necessity for a new trial in the interests of justice is too clear for discussion. Hobbs v. Illinois Cent. R. Co. 171 Iowa, 624, 152 N.W. 40, L.R.A. 1917E, 1023; Southern Ry. Co. v. Harbin, 135 Ga. 122, 68 S.E. 1103,30 L.R.A. (N.S.) 404, 21 Ann. Cas. 1011. So it is a case where we should reverse both judgments. That result alone would require a new trial. But we have the power when "necessary or proper" to order a new trial. Section 9494, G.S. 1923. That course is certainly proper here, and necessary as well in the interest of simple and direct procedure. So both judgments appealed from are reversed and a new trial ordered as to defendants bus company and Bergeron. So ordered.