Stanton v. Arkansas Democrat Co. , 194 Ark. 135 ( 1937 )

Mr. Justice Butler and the writer agree that the lower court had a right to set aside the verdict and grant a new trial, but we do not agree with the majority in holding that the judge had a right to constitute himself the trier of the facts and enter judgment against the plaintiff.

The majority opinion, in the first place, is based on the idea that the jury found that the employee was not guilty of negligence. The jury did not find any such thing. The jury returned a verdict against the Democrat Company without mentioning Crutchfield, the employee. How anybody can say this was a finding by the jury, that Crutchfield was not guilty of negligence, I am unable to see. The jury could not have found against the Democrat Company without finding that Crutchfield was guilty of negligence. There would be just as much reason in holding that, since the verdict against the Democrat Company was necessarily a finding that Crutchfield was guilty of negligence, in approving the verdict against the Democrat Company and entering judgment thereon, and entering judgment against Crutchfield because the verdict of the jury had necessarily found that he was guilty of negligence, as there would be to hold that the verdict in favor of Crutchfield exonerated the master, even if there had been a verdict in favor of Crutchfield.

The entire argument of the majority is based upon the erroneous theory that there was a verdict in favor of Crutchfield.

The majority opinion calls attention first to the case of Mississippi River Fuel Corporation v. Senn, 184 Ark. 554,45 S.W.2d 255, and states that we quoted with approval a statement of the law appearing in Patterson v. Risher, 143 Ark. 376, 221. S.W. 468, as follows: "Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a judgment in favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility and may be availed of by the principal for that purpose."

That statement of the law, in Patterson v. Risher, is a quotation from the syllabus in the case of Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875, 129 Am. St. Rep. 171. In the California case, the jury returned a verdict in favor of the servant. The court said that the principal could be no more guilty by reason of the act of his agent, than if he had committed the act in person, and the party who was alone charged to have committed the act in person, was conclusively adjudged not guilty.

Finding that the servant or agent is not guilty is a very different thing from failure of the jury to act at all as to the negligence of the servant, as was done in this case. The California court did not hold that a verdict against the master, without finding as to the servant at all, was a finding in favor of the servant, and exonerated the master.

We have never held, until the opinion in this case, that failure to find a verdict either for or against the servant exonerated the master, and I know of no court that has so held. Such holding, in my judgment, is contrary to reason, is not supported by authority, and cannot be justified.

The majority opinion says: "It is not contended in the instant case that there was either allegation or proof to defeat the operation of the rule announced in the Risher case, supra."

The rule announced in the Risher case was based on the verdict of the jury exonerating the servant. The majority opinion says that it does not review the authorities cited by opposing counsel because this case should be disposed of upon another ground. It said that the trial court found that he had reserved judgment, and the act of the clerk was premature in entering judgment. That may be true, and it may be that no judgment should have been rendered, but that is not the question in this case.

It is also said in the majority opinion that it is not questioned that the court had power to grant a new trial, but it is insisted that he could grant no other relief, and the majority opinion adds: "But that view does not comport with 6272 of Crawford Moses' Digest." That section of the digest reads: "Where the verdict is special, or where there has been a special finding on a particular question of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be rendered."

Certainly the majority does not think that this section would abrogate the Constitution and authorize the court to find on the facts and enter judgment according to his findings.

The section following the one just quoted, reads: "Where upon the statements in the pleading, one party IS entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party." Section 6273, Crawford Moses' Digest.

That clearly indicates that the judge has no authority to enter a judgment notwithstanding the verdict in any case except where the pleadings themselves show conclusively that one of the parties is entitled to judgment as a matter of law.

Section 6272 of Crawford Moses' Digest quoted by the majority, in my opinion, has no more application here than the multiplication table.

The court, in the instant case, did not order the case to be reserved. The trial court stated: `There was no verdict against the defendant, W. T. Crutchfield, and it appearing to the Court from the allegations of the complaint and the testimony introduced in the case, that the relation between the Arkansas Democrat Company and W. T. Crutchfield was that of master and servant, and that the Arkansas Democrat Company was liable for the acts of the said W. T. Crutchfield, because he was acting in a representative capacity for the Arkansas Democrat Company, the court finds there can be no recovery from the Arkansas Democrat Company independent of recovery from the defendant, W. T. Crutchfield, and, disregarding the verdict of the jury.

"It is considered, ordered and adjudged by the court that the plaintiff, Mrs. Fannette Stanton, as mother and next friend of Arthur Stanton, a minor, recover nothing from either the defendant, Arkansas Democrat Company, or the defendant, W. T. Crutchfield upon her complaint herein."

The court says there can be no recovery from the Arkansas Democrat independent of recovery from the defendant, Crutchfield. Of course, this statement is erroneous, because suit might have been prosecuted against the Democrat Company alone, and judgment have been obtained. In this case, however, the servant or agent was made a party, and the jury, for some reason that does not appeal., failed to return a verdict in the Crutchfield case. The court should have sent the jury back with instructions to find a verdict as to Crutchfield.

The majority opinion then discusses the case of Scharff Distilling Co. v. Dennis, 113 Ark. 221,168 S.W. 141, but there is no way to get around that opinion. In that case there was a judgment in favor of the plaintiff. The court said, "if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleading or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare as matter of law that the party in whose favor the judgment was entered was entitled to it, notwithstanding the verdict in favor of the other party." The court further said: "Therefore, without deciding whether a judgment non obstante veredicto could be entered upon undisputed evidence, it suffices to say that the evidence developed at the trial of this cause is not uncontradicted and did not justify the court in declaring as matter of law that the appellee was entitled to recover." This opinion expresses very great doubt as to whether a judgment notwithstanding the verdict can ever be granted except on matters appearing in the pleadings and record.

The majority opinion says that the distinction between the above case and the instant case is that a bill of exceptions was filed in the above case, and none was filed in this case. No bill of exceptions was necessary. The trial judge made it clear that it was his opinion that there could be no verdict against the Democrat Company where there was none against Crutchfield, and for that reason alone set aside the judgment, and entered judgment in favor of the Democrat Company.

No one who reads the statement of the court in this case can have any doubt that the court granted judgment against the plaintiff in favor of the Democrat Company solely on the ground that there was no verdict returned against Crutchfield.

In a Montana case, the verdict of the jury was silent as to the employee, but found against the employer. The court said: "The conclusions reached by jurors are sometime inexplicable. Often they arbitrarily find against one party and in favor of another without any apparent reason; but if the evidence justifies the verdict as to the party held, there is no reason why it should not be good as to him, notwithstanding there is no finding as to the other. The failure of the jury to find as to Wallace should be regarded as no finding upon the issues as to him at all. So, here, McPherson has not been acquitted of negligence, but the case as to him stands as though it had not been tried. This being true, it also follows that the failure of the jury to find as to McPherson cannot be seriously considered in the light of an irregularity in the proceedings, by which the Raven Company was prevented from having a fair trial. Even if it was an irregularity in the sense of the statute on new trials, we do not see how the company was prejudiced by it; the company still has whatever right of action it ever had against McPherson. It never did have any absolute right to his presence as a defendant in this particular case. That was optional with the plaintiff." Melzner v. Raven Copper Co., 47 Mont. 351, 132 P. 552.

In a case decided by the Supreme Court of Appeals of Virginia, there was no finding against the servant, but a finding against the master, and the court said, after stating the facts:

"Such being the situation, it seems plain that the verdict cannot be properly construed as finding that the servant clerk was not guilty of negligence. Hence the rule in question can have no application to the instant case.

"For the reasons above indicated, we are of opinion that the trial court erred in setting aside the aforesaid verdict against the defendant partners and in dismissing the case without executing the writ of inquiry as against the defendant servant; and the case will be reversed and final judgment will, under the statute (Code, 6365), be rendered for the plaintiff against the defendants, Shannon Florence, for $5,000, the amount of the verdict, with interest thereon from the 10th day of February, 1922 (the date of the verdict), until paid, and costs in the trial court and in this court, as the facts were fully developed on the trial which has been had, and are thus such before us as to enable us to attain the end of justice by rendering such final judgment." Dalby v. Shannon Florence, 124 S.E. 186.

"Although there was no verdict against the motorman, it is not seen now it can be successfully contended that he was not guilty of negligence in running his car into the car on which the plaintiff was riding. If the company had been sued alone, the jury would have been warranted in finding the company guilty of negligence, and in returning a verdict in favor of the plaintiff on that finding. The fact that the jury failed to return a verdict as to the defendant motorman is no reason why a verdict against the company, based on a finding of the jury that the motorman was guilty of negligence, should not stand. The failure of the jury to return a verdict against the motorman cannot be used as a reason for setting aside the judgment rendered against the railroad company." Whitesell v. Joplin P. Ry. Co.,115 Kan. 53, 222 P. 133.

A judgment notwithstanding the verdict must be based solely upon matters appearing in the record. It cannot be granted except on the face of the pleadings. 33 C.J. 1183. The proper remedy for a wrong or mistaken verdict is by motion for a new trial, and not by motion for a judgment notwithstanding the verdict. 33 C.J. 1184.

Certainly this minor who was injured, had a right to a trial by jury, and should not be deprived of that right because the jury failed to find any verdict as to the servant. The court probably should have sent the jury back with instructions to find a verdict as to Crutchfield, but he certainly had no authority under the law to direct a verdict against the plaintiff. No case decided by this court can be found, except the majority opinion in this case, that justifies such a holding, and I have been unable to find any case in other courts that would justify the conclusion reached by the majority in this case.

The plaintiff had a right to sue the master without making the servant a party, and if he had done so, judgment against the master would have been sustained. The plaintiff could, at any time, have dismissed or taken a nonsuit as to Crutchfield, and proceeded against the Democrat Company, and certainly when there was no verdict at all by the jury as to Crutchfield, there is no justification in holding that the master was exonerated.

I think the judgment should be reversed, and the cause remanded for a new trial. Mr. Justice BUTLER agrees with me in the conclusions reached.