The principle so clearly expressed has been approved by this court in White v. International Text Book Co.,
Where the real actor (who is none the less liable personally because acting for another) is not guilty, it necessarily follows that the party for whom he acted cannot be. In Sparrow v. Bromage,
In Portland Gold Mining Co. v. Stratton’s Independence, supra, the authorities are reviewed by Yan Devánter, J., and the conclusion reached that:
“It is settled by repeated decisions that the general rule that one may not have the benefit of a judgment as an estoppel unless he would have been bound by it had it been thé other way is subject to recognized exceptions, one of which is that, in actions of tort, such as trespass, if the defendant’s responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not*630 have been bound"'by it had it been the other way. And we think it could not well be otherwise, for, when the plaintiff has litigated directly with the immediate actor the claim that he was culpable, and, upon the full opportunity thus afforded for its legal investigation, the claim has been adjudged against the plaintiff, there is manifest propriety, and no injustice, in holding that he is thereby concluded from making it the basis of a right of recovery from another who is not otherwise responsible. To- such a case the maxim, ‘Interest rei piiblicae ut sit finis litium,’ may well be applied.”
There are decisions to the contrary but the grounds on which they rest are not persuasive. See Schumpert v. Southern R. Co. (S. C.),
The theory of these eases seems to be that in some way the master is a joint tort feasor, even though liable only because responsible for the act of the servant. In Carson v. Southern R. Co. (S. C.)
“It would seem on general principles that, if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled*632 to a like immunity. That such is the ordinary rule is not denied; but it is earnestly insisted by counsel that, where the employer is a common carrier, and the party injured a passenger, there is an exception, and the proposition is laid down that the contract of carriage is broken, and damages for such breach are recoverable, whenever the passenger is assaulted and injured by an employe without actual necessity therefor. It is urged that the carrier not only agrees to use all reasonable means to prevent the passenger from suffering violence at the hands of third parties, but also engages absolutely that his own employes shall commit no assault upon him. . . . If this shooting was lawfully done, and in the just exercise of the right of self-defense, there was neither misconduct nor negligence . . . The defense is that the act of the conductor was lawful. 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 employe, and assume a ease in which the carrier has no servants and himself does the work of carriage; should he assault and wound a passenger in the manner suggested by the instruction, it is undeniable that, if sued as an individual, he would 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 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. ’ ’
The acts for which damages were claimed were those of Core and G-ressley. The evidence as to whether they were guilty of any wrongdoing was in conflict. The jury exonerated them and, in doing so, necessarily exonerated the com
We are not saying that, had plaintiff applied for a new trial because of the inconsistency of the verdict, relief ought not to have been granted. What we do say is that entering judgment in favor of Core and Gressley eliminated all liability of the company and the motion for judgment dismissing the petition should have been sustained. — Reversed.