Street Railway v. Gore
61 S.W. 777
Tenn.
1901
Check Treatment
McAlister, J.

Plaintiff, as administrator of M. D. Gore, recovered a verdict for the sum of $2,500 against the Nashville Railway and the Nashville Street Railway, jointly, for the negligent killing of plaintiff’s intestate. *391A new trial was awarded tbe Nashville Railway, but tbe verdict was permitted to stand against 'tbe Nashville Street Railway. Tbe latter appealed, •and tbe only error assigned, in this Court, is that the verdict rendered by tbe jury, being a .joint verdict against both defendants, and having been set aside by tbe Court as to tbe Nashville .Railway, it could not stand as to tbe Nashville Street Railway; or, in other words, that the verdict of the jury was an entirety, and should have been set aside as a whole.

Tbe evidence on the trial below fully established tbe special defense of the Nashville Railway, to the effect' that at tbe date of the accident resulting in the death of plaintiff’s intestate, that company did not own the road or operate the car inflicting the injury, but that said road was owned and managed by tbe Nashville Street Railway. Hence, tbe Circuit Judge set aside tbe verdict so far as it affected tbe Nashville Railway, but permitted it to stand against -the other defendant.

Counsel cite Black on Judgments,, Vol. 1, Sec. 211, in ■ which the author says: “In general the authorities agree that the judgment cannot be affirmed as to one defendant and reversed as to another, but must-be reversed as an entirety, and, conversely, if in favor of the defendants, invalidity as to one will invalidate it as to all. A judgment jointly entered in favor of several defend*392ants, whether in an action upon contract or for tort, cannot be affirmed as to one and reversed as to another. Such a judgment is an entirety, and must stand or fall together.” It is true this rule was recognized and applied by this Court in the ease of Draper v. State, 1 Head, 262. It was said in that case that a judgment cannot be divided. If it is correct against one party, but erroneous as to others, it cannot be affirmed as to him and set aside as to the others; there must be a general reversal. But the Court refused to follow this rule in the case of Bentley v. Hurxthal, 3 Head, 377. “The rule,” said the Court, “that a judgment is an entire thing, and therefore if void as to one party cannot be allowed to stand as to any of the other parties, is a purely technical one. A judgment may be correct in all respects as to one party and altogether erroneous or void as to another joint party, and in such case there is no sufficient reason why the party rightfully charged should be discharged merely on the ground that another party was wrongfully made liable ' by -the same judgment.” The ■ last case, was followed in Smith v. Foster, 3 Cold., 147; Webb v. State, 4 Cold., 204; Cox v. Crumley, 5 Lea, 530-535. This is now the well established practice, both in this Court and in the inferior Courts. It was the duty of the Circuit Judge to set aside the verdict us to the Nashville Hallway, since there was *393no evidence to support it, nor can this action be made the basis of any complaint on the part of the Nashville Street Railway, which corporation was shown to be liable for the accident.

Affirmed.