23 Wash. 710 | Wash. | 1901
The opinion of the court was delivered hy
This is an action brought by the respondent against the appellant, the Oregon Railroad & Navigation Company, and the defendant, Samuel Root, to recover damages for a personal injury alleged to have been caused by the negligence of Root while acting as conductor on one of the appellant’s freight trains. The respondent and the defendant Root were employees of the appellant, the one in the capacity of fireman and the other as conductor. On November 13, 1898, a freight train known as “Extra 149,” drawn by the engine on which respondent was acting as fireman, left Starbuck, in Columbia county, and proceeded in the direction of Winona, in Whitman
The general rule undoubtedly is that where one has received an actionable injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrong doers, however numerous, are severally liable to him for the full amount of damages occasioned by such injury, and he may enforce the liability in an action
These general rules are relied on by the respondent to sustain the judgments entered in the court below. It, must
“But when a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit and requested to take upon him the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim, as if he was the real and nominal party upon the record. In every such ease, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not.”
See, also, Strong v. Phoenix Ins. Co., 62 Mo. 289 (21 Am. Rep. 417); Boston v. Worthington, 10 Gray, 496.
So, also, in such an action, whether brought against the employer severally, or jointly with the employee, the gravamen of the charge is, and must be, the negligence of the employee, and no recovery can be had, unless it be proven, and found by the jury, that the employee was negligent. Stated in another way: if the employee who causes the injury.is free from liability therefor, his employer must also be free from liability. This was held in New Orleans & N. E. R. R. Co. v. Jopes, 142 U. S. 18 (12 Sup. Ct. 109). In that case the plaintiff below was a passenger on the train of the defendant, and while such passenger was shot by the conductor of the train and seriously injured. The trial court ruled that the plaintiff was entitled to recover compensatory damages from the company, even though it was made to appear that the conductor had reasonable cause to believe that an assault with a knife was about to be made on him by the plaintiff, and
“It would seem on general principles that if the party who actually causes the injxxx’y is free from all civil and criminal liability therefox-, his employer must also be entitled to a like immunity. * * * * If the immediate actor is free from responsibility because his act was lawful, can his employer, one taking no direct part in the transaction, be held responsible? Suppose we eliminate the employee, and assxxme a case in which the carrier has no servants, and himself does the work of carriage; shoxxld he assault and wound a passexxger in the manner suggested by the instruction, it is undeniable that if sued as an individual he woxxld be held free from responsibility, and the act adjudged lawful. Can it be that if sued as a carrier for the same act a different rule obtains, and he be held liable ? Has he broken his contract of carriage by an act which is lawful in itself, and which as an individual he was justified in doing? The question candes its own answer; and it may be generally affirmed that if an act of an employee be lawfxil, and one which he is justified in doing, and which casts xxo personal responsibility upon him, no responsibility attaches to the exnployer therefor.” '
See, also, Wharton, Negligence, § 157.
So, too, from the principle that there can be no liability on the part of an enxployer for the act of his employee in which he took no part, if the employer is free from liability, it follows that a judgment in favor of the exnployee in an action broxxght against him for an injury caused by such an act is a bar to a recovery against the employer in an action brought against him for the same cause of action. And it has been held that an employer can avail himself of
“The weight of authority, however, is that where an agent in a transaction is sued after the termination of his agency, and upon a trial of the merits the issue is determined against the plaintiff, the principal, though not a party to the suit, can avail himself of the judgment as a bar, when he is sued by the same plaintiff on the same cause of action. While the principal, if he had no notice of the former suit, and no opportunity to defend it, ihay not be concluded by a judgment against his former agent, or made responsible for the agent’s bad pleading or blunders in the trial of the cause, because so to conclude him would be to deprive him of his property without due process of law, yet, as regards the plaintiff who has before sued the agent and been defeated, there is no reason why he should not be concluded upon that principle of public policy which gives every man one opportunity to prove his case, and limits every man to one such opportunity. He has had his day in court, and it is immaterial whether he has chosen to test his right as against the principle or the agent in the transaction, provided the issue to be tried was identical as against both.”
In Hill v. Bain, 15 R. I. 75 (23 Atl. 44, 2 Am. St. Rep. 873), the action was for personal injuries received by plaintiff while driving on a highway, caused by coming into collision with an obstruction left in the highway by two persons, named Budlong. The defendant pleaded in bar of the action a judgment in favor of the Budlongs, rendered on the verdict of a jury in an action brought by the plaintiff against them for the injury complained of, alleging that the Budlongs were the authors of the obstruction or defect. On demurrer this was held a good plea by way of estoppel.
“We think, on the authority of these cases, it is competent for the defendant town to set up, by way of estoppel in the case at bar, the judgment recovered by the Budlongs. Certainly, if the town had notified the Budlongs of the pendency of this action, and the Budlongs had, in consequence of the notice, assumed the defence, it would be competent for them, on the authority of these cases, to plead the former judgment in bar; for they would then be the real defendants, though defending in the name of the town, and ought not to be required to try over a question which they have already tried, with the result of a final judgment against the plaintiff in their favor. But the Budlongs, if they assumed the defence, would have to make it in the name of the town, and we see no good reason why the town should not be permitted to make, without calling upon them, any defence which they could make, if called upon, in the name of the town.”
In Featherston v. N. & C. Turnpike, 71 Hun, 109, the facts were similar to the case last cited. There it was said :
“The statement in the answer shows that Shafer was the wrongdoer, and that his act was the cause of the injury sustained by the plaintiff. So it seems to follow that if Shafer was not liable for creating and maintaining the obstruction, the defendant cannot be liable for the failure i o remove them. If Shafer was not liable because the plaintiff’s own negligence produced the injuries of which.she complains, the defendant is not liable for the same reason. Shafer and the defendant were not joint wrongdoers, and the rule that one wrongdoer cannot recover against, or compel contribution by another, does not apply. The relation between Shafer and the defendant was analogous to that of principal and agent, or principal and surety, or master and servant, and the rule in such cases is that a judgment in favor of the principal or the surety upon i ground equally applicable to both, should be accepted as conclusive against the plaintiff’s right of action. (Herman*720 on Estoppels, 169; Castle v. Noyes, 14 N. Y. 329.) * * * * * Under this rule of law, the turnpike company would be entitled to recover from Shafer any amount the plaintiff might recover against it. Such right would rest upon the principles of subrogation. The turnpike company would be entitled to be subrogated to plaintiff’s right of action against Shafer, but the judgment on the merits in Shafer’s favor in the plaintiff’s suit against him, relieves him of all liability to the plaintiff, or any person claiming under her, for the same cause of action. The plaintiff, therefore, by being barred by the judgment in Shafer’s favor, is equally barred from any action against the company under the rule that whatever discharges the principal discharges the surety. As she had no cause of action against Shafer, she can have no cause of action against the defendant, and, therefore, the portion of the answer to which the demurrer relates does set up, in our judgment, a valid defense to the action, and. the order appealed from should be reversed.”
In King v. Chase, 15 N. H. 9 (41 Am. Dec. 675), it was held that a judgment in favor of a deputy sheriff is conclusive evidence for the sheriff in a subsequent action, where both actions are for the seizure of the same goods. In Emery v. Fowler, 39 Me. 326 (63 Am. Dec. 627), it. was held that a judgment in favor of a master in an action against him for the act of his servant, rendered in a trial of the action on the merits, is a bar to an action against the servant for the same act. In that case the court said:
“To permit a person to commence an action against the principal and to prove the acts alleged to be trespasses, to have been committed by his servant acting by his order, and to fail upon the merits to recover, and subsequently to commence an action against that servant and to prove and rely upon the same acts as a trespass, is to allow him to have two trials for the same cause of action, to be proved by the same testimony. In such cases the technical rule, that a judgment can only be admitted between the parties to the record or their privies, expands so far as to admit it, when*721 the same question has been decided and judgment rendered between parties responsible for the acts of others. A familiar example is presented in suits against a sheriff or his deputy, which being determined upon the merits against or in favor of one, will be conclusive upon the other.”
See, also, Atkinson v. White, 60 Me. 396; Spencer v. Dearth, 43 Vt. 98; Glaze v. Citizens' National Bank, 116 Ind. 492 (18 N. E. 450); Williams v. McGrade, 13 Minn. 46; Inhabitants of Lower Alloways Creek v. Moore, 15 N. J. Law, 146; Chicago & Rock Island R. R. Co. v. Hutchins, 34 Ill. 108, 111; 2 Van Fleet, Former Adjudication, § 572.
From these considerations it is clear that the trial court erred in entering judgment against the appellant after it had entered judgment in favor of the defendant Root. It becomes important, therefore, to inquire what disposition shall be made of the case by this court. Were the judgment against Root void, or were it before us for review on this appeal, or on a separate appeal by the present respondent, we would have no hesitancy in reversing both judgments and remanding the cause for a retrial on the whole of the issues. But the judgment in favor of Root is not void. True, the verdict of the jury was silent as to him, and it may be that the rule that silence of the verdict as to one of the defendants is a finding in favor of that defendant, is not strictly applicable to this class of cases; yet the action of the trial court in construing the verdict as one in his favor, and entering judgment thereon, was at most error merely, rendering the judgment voidable, and subject to be vacated or reversed if seasonably attacked by some one or more of the methods pointed out,by the Code for vacating or reversing erroneous judgments. Inasmuch, however, as it was not so attacked, so far from being void, it stands as a' conclusive bar to a recovery against Root, not only in the present ac
This being so, there can be no retrial of the issues between the respondent and the appellant. We are aware that the principle of the cases above cited, in so far as they permitted the party secondarily liable to plead directly in estoppel a judgment in favor of his principal on the same cause of action, have been criticised as controverting the rule that estoppels, to be binding, must be mutual. See, particularly, Mr. Breeman’s note to Hill v. Bain, 2 Am. St. Rep. 873, 876. But, if we wére to accept this criticism as just, it can have no application to a case»presenting the conditions shown by the record before us. Here the judgment constituting the bar to a recovery was entered in the action then being tried by the court. Certainly there is no rule of law which requires that such a judgment should either be pleaded or proved in order to make it available to all of the defendants against whom or in favor of whom it operates. The contrary view would imply that the court could
We have not overlooked the contention made by the respondent to the effect that the appellant cannot avail itself of the judgment in favor of Root because it did not except to the construction pitt by the court upon the’ verdict of the jury. This was not, however, a duty which devolved on the appellant. It was the respondent who was adversely affected by that construction, and, inasmuch as he consented thereto, he must abide by all the consequences which such construction entails.
We conclude, therefore, that the judgment appealed from must be reversed, and the cause remanded with instructions to enter a judgment for the appellant in accordance with the prayer of its answer; and it is so ordered.
Dunbar, C. J., and Anders and Reavis, JJ., concur.