Johnson v. A.C.L. Railroad Co. , 142 S.C. 125 ( 1927 )

The effect of a decision of this appeal, in conformity with the opinion of Mr. Justice Blease, will be to overrule the case of Jenkins v.R. Co., 130 S.C. 180; 125 S.E., 912, in so far, at least, as that case holds that in a joint action against a master and his servant, based upon the alleged willful act of the servantalone, a verdict for punitive damages cannot be apportioned, so as to award a greater sum against the master than against the servant.

The Jenkins case was a joint action against both master and servant, based upon the alleged willful act of the servant alone, just as the present action is, so far as punitive damages are concerned; it was not based, as this action is not based, upon an alleged joint tort, participated in by both defendants.

It should be appreciated at the outset, what the case doesnot decide, as well as what it does decide:

(1) It does not decide that in a joint action against a master and his servant, based upon a tort which was the resultof the combined negligence of both, a verdict for actual damages cannot be apportioned between them. On the contrary, it recognizes the authority of the case of White v.McNeily, 1 Bay, 11, and the cases cited following that decision, which hold that apportionment under such circumstances is premissible.

(2) It does not decide that in a joint action against a master and servant, based upon a tort which was the result ofthe combined willfulness of both, a verdict for punitive damages cannot be apportioned between them. That question did not arise in the Jenkins case, and consequently was not decided. It does not arise in the case at bar. The entire argument of Mr. Justice Blease is directed to sustaining apportionment in a case of that kind, which is not the caseat bar.

(3) It does decide, as above stated, that in a joint action against a master and his servant, based upon a tort whichwas the result of the willful act of the servant alone, a verdict for punitive damages cannot be apportioned. That is the issue upon this appeal, and not that indicated in the second subdivision above.

The facts are sufficiently stated in the opinion referred to, and need not be repeated. It is conceded on all sides that the tort complained of was that of the servant alone, the master not having authorized, participated in or ratified the alleged willful act of the servant.

The defendants were the railroad company and two of its employees, Brown and Dorsey. The verdict exonerated the defendant Brown, and found against the railroad company actual damages, $500, and punitive damages, $1,500, and against the defendant Dorsey actual damages, $200, and punitive damages, $300.

Upon a motion for a new trial by both of the defendants against whom the verdict had been rendered, the presiding Judge, his Honor Judge Rice, granted a new trial nisi, requiring the plaintiff to remit $300 of the actual damages found against the railroad company, and adjudged that, "in the event of such remission, the plaintiff shall be authorized to enter judgment in the sum of $200 jointly against the defendant Dorsey and the defendant Atlantic Coast Line Railroad Company. As to the cause of action for punitive damages, the plaintiff may enter judgment against the two defendants separately, in accordance with the findings made by the jury." He held:

"While the finding by the verdict is the amount of $700, as the gross sum of actual damages sustained by the plaintiff, yet the sum of $200 only was found as the amount of actual damages caused by Dorsey. There is an apparent inconsistency in these two findings; and it would seem that the rule for the apportionment of damages according to the different degrees of guilt of the two defendants does not properly apply to this situation.

"Under such circumstances, it is my opinion that, as to actual damages, the verdict should be modified and the plaintiff be permitted to have judgment in the sum of $200; this to be a judgment jointly against the defendant Dorsey and the defendant Atlantic Coast Line Railroad Company."

In effect he held that actual damages could not be apportioned, while punitive damages could be apportioned between the defendants "according to the different degrees of guilt," thus establishing as the criterion upon the issue of apportionment the character of the damages awarded, actual orpunitive — if actual, no apportionment; if punitive, apportionment — a criterion which I shall endeavor to demonstrate is illogical and improper. The result was that, after the remission of $300 as required, judgment was entered against the railroad company for $1,500 punitive damages, against Dorsey for $300 punitive damages, and against the two jointly for $200 actual damages; making $2,000 in all.

The defendants have appealed upon various grounds, only one of which I shall discuss, namely, the exception based upon the proposition declared in the Jenkins case, supra, that in a joint action against a master and his servant, basedsolely upon the alleged willful act of the servant, a verdict for punitive damages cannot be apportioned between them.

My opinion is that, as relating to the power of a jury to render a verdict apportioning the damages awarded, between the defendants, in actions instituted jointly against the master and the offending servant, based wholly or in part upon the negligent or willful tortious act of the servant, the test is whether the facts show a case of jointwrongdoing, whether the injury was the result of the participation of both master and servant in the tort complained of. If it was, there can be no contribution or reimbursement, as between the joint tortfeasors, and consequently, there can be no objection, under the decisions of this Court, to an apportionment. If it was not, but was the sole act of the servant, in which the master did not participate by authorization, ratification, or otherwise, and is sought to be held liable solely under the principle of respondeat superior, the master's unquestionable right of reimbursement cannot legally be destroyed or diminished, as it will necessarily be, by an apportionment.

The test is not whether the damages awarded are actual or punitive, and upon that issue determine the question of apportionment, as has been done in the order of the Circuit Judge and in the opinion of Mr. Justice Blease; but whether the Master is entitled to reimbursement from the servant for the damages he may be compelled to pay, and that depends upon whether the tort complained of was the sole act of the agent, or an act in which both participated.

Joint actions against both master and servant are of two kinds:

punitive damages should be punished according to his ability participated in the tort which produced the injury, or where the master has been guilty of an act of negligence or willfulness and the servant has been similarly guilty, both acts concurring in producing the injury. A case of joint wrongdoers or tortfeasors, as the expression is, is then presented. Under such circumstances there can be no right on the part of the master to contribution or reimbursement, and under the decisions of this Court, the apportionment of damages is permissible. This extends to actual as well as to punitivedamages.

(2) Where the master has not at all participated, by authorization, ratification, or otherwise, in the act of negligence or willfulness (the act being solely that of the servant), but whose liability for the act of the servant is imputed to him by reason of the relation, under the rule ofrespondeat superior. A case of joint wrongdoers is not then presented. Under such circumstances, the right of the master to reimbursement is universally recognized, and the power of apportionment of damages is denied.

It does not make any difference whether the act of the servant has been negligent or willful, the damages actual or punitive, the existence of the right of reimbursement is hostile to the power of apportionment.

There cannot be a question but that the complaint in this case is predicated upon the "negligent and willful" act of Dorsey, the servant of the railroad company, alone. There is not a suggestion in the complaint, or in the evidence, or in the argument of counsel, of any direct participation of the railroad company in the alleged act of Dorsey. The abstract of the complaint set out in the "case" fully justifies this statement:

"It is alleged in the complaint that the defendants J.A. Dorsey and J.D. Brown were in the employ of the defendant Atlantic Coast Line Railroad Company in the capacity of captain of police and subordinate in police department of the Atlantic Coast Line Railroad Company; that about the 10th day of April, 1922, plaintiff was in the employ of the Union News Company as a news butcher; that upon reaching Florence on one of his regular trips on that particular date he was standing near the train, when the defendant Brown touched him on the shoulder and requested him to go in the car in which his equipment was situated, and that, upon doing so, he found the defendant J.A. Dorsey standing near the equipment, and that said J.A. Dorsey, in a loud and boisterous manner, demanded that plaintiff unlock his hampers, claiming to have information that plaintiff had been transporting whisky, and threatened that, unless plaintiff did open his hampers to be searched by the defendants Dorsey and Brown, they would place him under arrest, procure a search warrant, and search same, whereupon, believing that, if he did not allow a search, he would be placed under arrest, which would cause publicity and humiliation, as well as loss of time by being detained from his run, he opened his hampers, and a thorough search was made by the defendants J.A. Dorsey and J.D. Brown; that, finding nothing, they then demanded his grip, which was in the baggage coach, and, under the same circumstances, plaintiff opened his grip and another search was made by the same defendants, but no alcoholic beverages were discovered; that, upon returning to Florence on the afternoon of the same day, he saw the defendant J.A. Dorsey and asked him his name, whereupon the names of the defendants Dorsey and Brown were furnished him, but the defendant Dorsey appeared to become enraged, and, in the presence of a number of people, cursed and threatened plaintiff, much to his humiliation and chagrin; that the said rude, offensive, negligent, willful, and wanton acts of the said J.A. Dorsey and J.D. Brown, pretending to act in their capacity as agents and policemen of Atlantic Coast Line Railroad Company, was a trespass upon the plaintiff's rights as a free citizen; and that, as a result of said trespass, plaintiff was injured, in that he was restrained from the enjoyment of his liberty and deprived of his legal rights as a free citizen for the length of time that it took him to open his hampers and baggage, and in that the search conducted by them was unlawful, constituting a trespass upon his property and rights, and he further suffered great humiliation and embarrassment in having a false charge made against him in public, all to his damage in the sum of $10,000."

The case then falls under the third division above stated, where the master is sought to be held liable solely under the principle of respondeat superior, for the tort solely of the servant.

There can be no doubt as to the proposition that there can arise no right of reimbursement or contribution as between joint wrongdoers. See authorities cited by Mr. Acting Associate Justice Ramage, in James v. Telegraph Co., 130 S.C. 533, at page 540; 126 S.E., 653. It is equally well established that, where a master is made to respond in damages for the tort of his servant, whether negligent or willful, under the principle of respondeat superior (where he has not participated in the tort), the master is entitled to reimbursement from the servant for "the compensation which the employer has been obliged to make to third persons for injuries sustained by him." 18 R.C.L., 502. "If the company is liable to plaintiff, the servant or servants whose wrongful acts or omissions actually caused the injury are liable over to the company for the amount which it will be compelled to pay on account thereof." Jones v. RailroadCo., 106 S.C. 20; 90 S.E., 183.

It follows logically and inevitably that in the last-named circumstance the master and the servant cannot be considered as joint wrongdoers; the servant is held liable because he personally committed the tort; the master is held liable, not because he committed it, for he did not, but because under the principle of respondeat superior, a matter of public policy, he must respond vicariously for the wrong of the servant; a case of constructive, imputed liability. As is said in Cooley, Torts, 145, quoted with approval, not only in the Supreme Court of the United States (Southern R. Co.v. Carson, 194 U.S. 136; 24 S.Ct., 609; 48 L.Ed., 907), but in the Supreme Court of this State (Schumpert v. RailroadCo., 65 S.C. 332; 43 S.E., 813; 95 Am. St. Rep., 802):

"As between the company and its servant, the latter aloneis the wrongdoer, and in calling upon him for indemnity the company bases no claim upon its own misfeasance or default, but upon that of the servant himself."

It is conceded by counsel for the plaintiff, that the law is thus correctly stated in 18 R.C.L., 502, which they quote:

"An employee is directly liable to his employer for any damages occasioned by his negligence or misconduct, whether such damages be direct to the property of the employer,or arise from the compensation which the employerhas been obliged to make to third persons for injuries sustainedby them."

In Jones v. Railroad Co., 106 S.C. 20; 90 S.E., 183, the action was based solely on the alleged delict of the servant: the verdict was in favor of the servant and against the servant and against the railway company. The Court held that it could not stand. "It would be unreasonable to say that the servant did no wrong, but nevertheless his master is liable, when the only wrong charged against the master is that of the servant." As a further sustaining ground for its position, the Court declared:

"The company's liability is predicated solely upon the conduct of its servants under the doctrine respondeat superior; and, under the facts and circumstances proved, if the company is liable to plaintiff, the servant or servants whose wrongful acts or omissions actually caused the injury are liable over to the company for the amount which it will be compelled to pay on account thereof. But, as the verdict acquits both the servants of having done any wrong, the company is deprived of its remedy against the offending servant or servants, because the judgment in this case would be a bar to an action by the company against either or both."

In Sparks v. Railroad Co., 109 S.C. 145; 95 S.E., 344, it is said:

"Moreover, if Jones' [the servant's] wrongful acts had caused the injury, and the company had been made to pay damages therefor under the doctrine of respondeat superior, the company would have had a right of action over against him, or, being a party to the action with the company, itwould have had the right to compel him to pay the judgment."

See, also, Sparks v. R. Co., 104 S.C. 266; 88 S.E., 739.Ilderton v. R. Co., 113 S.C. 91; 101 S.E., 282. Beauchampv. Winnsboro Co., 113 S.C. 522; 101 S.E., 856.

So then it appears to be perfectly clear that, in a case of the imputed liability of the master, in which he is entitled to reimbursement, whether the damages be actual or punitive, to permit the apportionment of damages necessarily destroys the master's right of reimbursement from the servant. For instance, if in such a case (not one of joint tort, but ofimputed liability), where the servant has been convicted of negligence simply, from which actual damages ensue, the verdict apportions $500 damages against the master and $200 against the servant, the master's right of reimbursement is destroyed completely; for, after paying the judgment against himself for $500, he cannot claim reimbursement from the servant of the $500 so paid, for the reason stated in the Jones case above quoted, that the judgment in the case would be a bar to an action against the servant and adjudication that the servant should be discharged upon the payment of the amount $200 to the plaintiff; and for the further reason that to allow reimbursement even to the limited amount found against the servant would subject him to a double payment of the same sum which the verdict establishes as due by him to the plaintiff.

Under similar circumstances, if the servant has been convicted of a willful tort, from which punitive damages ensue, and the verdict apportions $1,500 damages against the master, and $300 against the servant, the master's right to reimbursement is destroyed completely, for the same reasons.

If the right of reimbursement be not destroyed by the apportionment of the verdict, in a case where it unquestionably can be exercised, as where the tort is the act solely of the servant, what possible alleviation to the servant would result from such apportionment? He will be under obligation to reimburse the master for the amount, however great it may be. In fact, he will be in a worse fix, for he will have the judgment against himself to pay also. It does not appear, therefore, that the argument that the corporation should pay in proportion to its wealth and in consideration of its immunity from corporal punishment is entitled to any consideration; or that the poor man will be benefitted by a smaller award against him.

The situation is obviously different in a case of joint wrongdoers, as where the master and the servant are jointly sued for damages resulting from a negligent or willful tort in which they both participated. In such case, according to the admittedly exceptional attitude of this Court upon the question, the damages may be apportioned, for the master could not call on the servant for reimbursement.

The case of Nelson v. Halvorson, 117 Minn., 255;135 N.W., 818, Ann. Cas., 1913-D, 106, cited by his Honor Judge Rice, was a case of joint wrongdoers, and has no application to a case of imputed liability.

I concede, as the decisions of this Court have over and over held, that, even in a case where the master has not participated at all in the tort of the servant, by authorization, ratification, or otherwise, he is liable in punitive damages for the willful tort of the servant, as well as for actual damages for the tort. I conceded also that the state rule is in conflict with that announced by the Supreme Court of the United States.

I concede also that the rule of apportionment of actual damages, as declared in the case of White v. McNeily, 1 Bay, 11, is in conflict with the rule announced by the Supreme Court of the United States in the case of WashingtonCo. v. Lansden, 172 U.S. 534; 19 S.Ct., 296;43 L.Ed., 543.

I do not concede that the rule as to proof of the defendant's wealth, in cases of willful tort, is different in the two jurisdictions. I think that they are the same; the Lansdencase does not hold to the contrary. Brown v. Evans (C. C.), 17 F., 912.

These variances do not at all affect the question now before the Court. That question is: In a case (not of joint tort-feasors), where it is sought to hold the master liable in punitive damages for the sole, willful act of the servant, can a verdict be sustained which awards greater punitive damages against the master than against the servant? Thatquestion has never been answered by this Court, except inthe Jenkins case. It seems to me of exceedingly doubtful consistency in those so fervently imbued with the commendable spirit of "bringing to our people a greater respect for our laws and the Courts," hardly before the ink is dry upon that decision, to compass its destruction.

No one questions the academic observations in the opinion of Mr. Justice Blease, that the defendant in an action for punitive damages should be punished according to his ability to respond; that what may be punishment to a poor man would amount to nothing more than to flick a speck from a rich man's sleeve; or that a corporation, which cannot be subjected to corporal punishment, should be financially punished in consideration of that immunity which the individual does not enjoy; or that "certainly in instances where the law of the land has been purposely evaded or positively infringed by an artificial person (a corporation, I interpolate), whose invisible person cannot be physically touched, such artificial person should be required, in the only way in which the law is able to reach it, to be made to suffer punishment sufficient to meet the offense" — observations, I deferentially suggest, entirely wide of the mark, and assuming the participationof the corporation in the tort complained of, the differentiating circumstances in the whole discussion.

The suggestion that "in many instances, such damages (actual) may be measured in dollars and cents, it being ordinarily a matter of calculation only to estimate the value of time, loss of money, physicians' bills and many other items generally included in damages of that class," while in the assessment of punitive damages there is no exact measurement, etc., certainly has no application to the present case, where no such items of damage were claimed; the difficulty in the one case, the absence of a "yardstick," is as great as in the other.

This statement also occurs in the opinion of Mr. Justice Blease:

"To follow the reasoning in the Jenkins case to its last analysis would amount to saying that some impecunious individual, agent of a wealthy corporation, for a willful tort committed by him, would not only have to pay the same amount of money damages as that required of his corporate employer, but, in addition thereto, the agent might have to suffer punishment more severe than the payment of money, while the corporation could escape with only pecuniary loss, and that in no greater amount than the sum assessed against its agent."

This is necessarily true, where the master and the servant are jointly sued upon a cause of action based solely upon the willful act of the servant; it is an inevitable result of the election which the plaintiff exercised of suing them jointly instead of singly, which he unquestionably had the right to do. And, even if he had sued them singly, the result would have been the same. Suppose, for instance, the plaintiff had sued the railroad company alone; the cause of action being based solely upon the willful act of Dorsey, and had recovered a verdict of $1,500.00 punitive damages against the railroad company, of course, alone, unquestionably under the Jones and Sparks cases, supra, the railroad company upon payment of the judgment, would have been entitled to full reimbursement from Dorsey for the amount so paid; Dorsey, the "impecunious individual" would come under the obligation of reimbursement, besides being subject to criminal prosecution if the circumstances justified it.

Again referring to the statement above quoted:

"Certainly, in instances where the law of the land has been purposely evaded or positively infringed by an artificialperson," whose "invisible person cannot be physically touched, such artificial creation should be required in the only way in which the law is able to reach it, to be made to suffer punishment sufficient to meet the offense." (Italics added.)

To this statement, as a general proposition, there is no objection; but what application has it to the facts of the present case? The plaintiff makes no contention, in pleading or argument, that the railroad company, as a separate entity from Dorsey, its agent, has "purposely invaded or positively infringed" the law of the land; and there is no evidence in the case that has even the color of such a suggestion. The whole case is based upon the willful act of the agent, for which the railroad company is responsible, without the slightest suggestion that it authorized, directed, participated in, or ratified such act.

"The reasons assigned by Judge Rice for his refusal to set aside the verdict for punitive damages are, really, entirely sufficient to support his order."

His only reason is that punitive damages are given as a punishment and may be imposed according to the ability of the parties to pay; a proposition that no one will deny, but which does not come within drumbeat of the question involved in the appeal.

As I understand the position taken by the learned Justice, it is that, while the judgment entered upon the verdict in this case is conclusive upon both parties as to certain matters, it is not conclusive upon the right of the railroad company to reimbursement from Dorsey for the amount it has been adjudged liable and may pay. His position is indicated in the following extract from his opinion:

"Under the foregoing authorities, the matters included in the adjudication, and therefore the particulars in which the judgment may be regarded as conclusive, are: (1) The liability of the corporation master to respond in damages for the injuries complained of in the action, as resulting from the act of the agent within the scope of his employment; (2) the negligent and willful tort of the agent in consequence of which the present judgment was procured; (3) the amount of damages caused by the tort of the servant, for the payment of which the master could be justly held responsible by the injured person.

"In other matters, the present judgment could not be regarded as conclusive in an action for indemnity subsequently brought by one defendant against another. * * * The defendants upon whom the verdict imposes liability are left free to take subsequent action, without their rights or remedies being curtailed."

In other words, that the judgments entered upon the verdict (as reduced in consequence of the order of his Honor, Judge Rice), leave open the question of the railroad company's right, upon payment of the judgment against it, to reimbursement from the defendant, Dorsey, therefor.

I do not think that this is the law; on the contrary, I think that from the facts which are conceded by the foregoing extract to be concluded by the judgment, it follows irresistibly that the master's right of reimbursement (or indemnity, if that term be preferred) has been established by the judgment and is, therefore res adjudicata. If it be conceded that the judgment establishes the fact that the servant alone has committed a willful tort, within the scope of his employment, for the consequences of which the master is legally responsible, it follows inevitably that the master's right of reimbursement upon payment of the judgment against him has been established.

Mr. Justice Blease criticises as obiter the additional reason assigned by the Court in the Jones and Sparks cases, in holding that a verdict exonerating the servant and holding the master liable in an action based solely upon the tort of the servant, is illogical, which reason is that it will destroy the master's right of reimbursement. I do not understand that he questions the right of the master under such circumstances to reimbursement, for he cites Cooley on Torts 2d Ed.), 167, 168; 7 Labatt on M. S. (2d Ed.), 8011; 2 Sherman R. on Negligence (6th Ed.), 705; Freeman's notes to 16 Am. St. Rep., 255; Oceanic Co. v. Compania,134 N.Y., 461; 31 N.E., 987; 30 Am. St. Rep., 685, and other authorities sustaining the unquestioned right of the master to reimbursement. (Note. The use of the word "reimbursement" in the Jenkins case is subjected to a covert criticism, as appearing first in that case. The word usually employed is "indemnity." It seemed to the writer that "indemnity" expressed the idea of anticipating payment, while "reimbursement" the idea of accomplished payment, and was the better term.)

If then the judgment concludes: (1) The liability of the railroad company to respond in damages for the injury complained of, as resulting from the act of the agent withinthe scope of his employment; (2) the negligent and willful tort of the agent, in consequence of which he present judgment was procured; (3) the amount of damages caused bythe tort of the servant, for the payment of which the master could be justly held responsible by the injured person; and as an inevitable corollary I think; (4) the right of the master to be reimbursed upon payment of the judgment against him — it would seem to follow that this right of reimbursement must stand in its integrity, and cannot be impaired by the judgment against the servant in a smaller amount.

I do not think that there can be a doubt as to the proposition advanced by Mr. Justice Blease, certainly not in cases where the person responsible over is not a party to the action, but is simply notified of its pendency and character, that the judgment against the immediate defendant does not determine the question whether the person claimed to be responsible over is in fact the person primarily responsible, or preclude him from setting up any defenses which from the nature of the action or pleadings he could not have interposed in the first action, had he been a formal party to it. This is exactly what was decided in the case of Newell v.Blankenship, 130 S.C. 131; 125 S.E., 420, in which the opinion was written by myself, and which I have seen no reason to change.

But, where the action is based upon the sole tort of the agent or servant, and, as Mr. Justice Blease concedes, the judgment is conclusive as to this fact, the conclusion of law from such fact is inevitable, that the right of reimbursement has been adjudicated.

The case of Washington Bridge Co. v. Pennsylvania SteelCo. (C.C.A.), 215 F., 32, opinion by Judge Woods, so strongly relied upon by Mr. Justice Blease, directly sustains the position for which I contend. In that case the bridge company entered into a contract for the construction of a steel bridge over the Potomac River. It contracted with the steel company to furnish and put in position the steel girder spans. During construction, a pier supporting the steel work gave way, seriously injuring an employee named Benning. He brought an action against the steel company, alleging negligence in not providing him with a reasonably safe place for work. The steel company immediately notified the bridge company of the pendency of the suit and of its intention to hold the bridge company responsible for any recovery in favor of Benning claiming that it had an indemnity contract from the bridge company covering all accidents whether due to its negligence or otherwise; no mention of this indemnity contract was made in the trial between Benning and the steel company, as it manifestly was irrelevant to the issue involved. Benning recovered a judgment against the steel company for $13,500.00. The steel company paid the judgment and brought suit against the bridge company, claiming under its indemnity and that the cause of the collapse was the negligence of the bridge company in not properly inspecting the concrete piers which had been constructed by a contractor of the bridge company, independent of the steel company, under the supervision of an engineer of the bridge company. The point in the case, relevant to the issue involved in the case at bar, was whether the judgment of Benning against the steel company was conclusive of the liability of the bridge company to the steel company under the notice which the steel company gave to the bridge company that it would be held responsible for any recovery in favor of Benning in his suit against the steel company. The Court very properly held, as quoted by Mr. Justice Blease, that it was "not conclusive as to matters not necessary for Benning to prove as a condition of his recovery against the steel company," but added the very significant statement:

"The rule, however, extends the conclusiveness of such a judgment to this point: If the record in the Benning case had shown that the negligence of the steel company in failing to perform its nondelegable duty of using due care to provide a reasonably safe place for Benning to work was necessarily due solely to negligence of the bridge company in not exercising due care to furnish a pier strong enough to bear the superstructure, and could not have been due to any independent breach of duty on the part of the steel company, then the judgment in the Benning case would beconclusive of the actionable negligence of the bridge companyand of its liability to the steel company."

It will be observed that in the Benning case against the steel company, there was no reference to the negligence of the bridge company which the steel company sought to make the party responsible over; that issue did not arise except upon the second trial of the suit of the Washington Berkeley Bridge Company v. Pennsylvania Steel Company, reported in (C.C.A.), 226 F., 169. In the case at bar it was conceded that the tort complained of was committed by the agent or servant of the railroad company alone, and that is stated by Mr. Justice Blease as one of the matters concluded by the judgment. Hence, under the authority cited, the judgment is conclusive of the actionable negligence of Dorsey and of his liability to the railroad company. Bear in mind too that in the Benning case the bridge company was not a party defendant; while in the case at bar Dorsey was. A fortiori should the principle announced in the case cited be applied here. Besides in the case at bar, there being no evidence whatever of participation by the railroad company in the tort, it was a part of the plaintiff's case to establish the fact that the tort was committed by an agent of the company, which, being established, established also the right of the railroad company to reimbursement.

In the case of Washington Gas. Co. v. District of Columbia,161 U.S. 316; 16 S.Ct., 564; 40 L.Ed., 712, cited by Judge Woods in the case just discussed, a Mrs. Parker sued the District of Columbia to recover damages for an injury to her person alleged to have been suffered from stepping into a hole in the sidewalk of one of the streets of the City of Washington. The gas company was not made a party to the suit, but was formally notified of the pendency and character of the suit and that it would be expected to indemnify the District for any amount which it might be compelled to pay to Mrs. Parker. Mrs. Parker recovered a judgment of $5,000.00 which was paid by the District, and suit was brought by the District against the gas company as the party ultimately liable upon the ground that it was responsible for the unprotected condition of the box. The point was there made, as here, that the judgment in the Parker suit was not conclusive upon the gas company. The Court, however, concluded that upon a justifiable examination of the entire record in the Parker case it appeared that the gas company was primarily liable, and sustained the contention of the District as to the conclusiveness of the first judgment. "It follows, therefore, that the judgment against the District conclusively established a fact from which, as the duty to repair rested on the gas company, its negligence results." Differentiating that case from the Robbins case, 4 Wall, 657; 18 L.Ed., 427, the Court said:

"But in that case the liability of the city rested on actual notice of the defect in the street and not on implied negligence based on the continued existence of the defect which caused the injury; therefore, the essential fact on which the judgment against the city rested did not as a legal consequence imply negligence on the part of Robbins."

In the case at bar this must be conceded: The essential fact on which the judgment against the railroad company rested did as a legal consequence adjudicate negligence on the part of Dorsey.

It is further stated in the opinion of Mr. Justice Blease:

"The proof connected the defendant, Dorsey's, act with the injury. It was not necessary for plaintiff to go beyond this, or to show that the corporation authorized or otherwise actively participated in the tort. The test of liability against the railroad was whether Dorsey was acting within the scope of his employment. Whether he was acting under instructions, or whether he was disobeying instructions, would not have been a defense either for himself or for the company."

All of which may be entirely true, without affecting the conclusion that, as the complaint counted upon the sole tort of Dorsey and the consequent liability of the railroad company, and the proof showed that, if there was a tort, it was solely that of Dorsey, the judgment is conclusive of the fact, and from it the right of the railroad company to reimbursement is complete.

I had supposed that nothing more than a citation of the cases of Jones v. Railroad Co., 106 S.C. 20; 90 S.E., 183.Sparks v. Railroad Co., 109 S.C. 145; 95 S.E., 344. Ildertonv. Railroad Co., 113 S.C. 91; 101 S.E., 282, andBeauchamp v. Winnsboro Granite Corporation, 113 S.C. 522;101 S.E., 856, was necessary to re-enforce the declaration made in the Jenkins case, specifically sustained by those cases so recently decided, that a judgment in an action against the master and the servant, based upon the tort of the servant alone, was conclusive upon both; that, if it be against the master and in favor of the servant, it cannot stand; that at least one ground upon which the conclusion was arrived at was that the master's right of reimbursement would be destroyed. I could not in the Jenkins case and cannot now see any difference, except in degree, between the effect of a judgment in favor of the servant and one against him for a great deal smaller amount than against the master. Both affect the substantial legal right of the master to be reimbursed by the offending servant, in the one case a total destruction and in the other partial.

But it appears necessary, in order to sustain the position of Mr. Justice Blease in this case, that one of the grounds upon which those cases were decided shall be eliminated, upon the ground that it was not necessary to a determination of the cases, and, therefore, obiter dictum. Reviewing briefly the Jones and Sparks cases: The decision of the Court in the Jones case was predicated solely upon the act of the servant, and that, if he was found not liable, "it would be unreasonable to say that the servant did no wrong, but nevertheless his master is liable, when the only wrong charged against the master is that of the servant"; (2) that, where the company's liability is predicated solely upon the conduct of its servant under the doctrine of respondeat superior, the servant whose wrongful act actually caused the injury is liable over to the company for the amount, it will be compelled to pay on account thereof. "But as the verdict acquits the servants of having done any wrong (there were two servants involved in the case), the company is deprived of its remedy against the offending servant or servants, because the judgment in this case would be a bar to an action by the company against either or both of them."

In the Sparks case, the first ground stated above in reference to the Jones case, was thus stated:

"In fact, it had been finally adjudicated that Jones [the servant] had done no wrong. It necessarily follows that the company had done no wrong through the agency of Jones."

In reference to the second ground, it was declared:

"Moreover, if Jones' wrongful acts had caused the injury, and the company had been made to pay damages therefor under the doctrine of respondeat superior, the company would have had a right of action over against him, or, being a party to the action with the company, it would have had the right to compel him to pay the judgment. But it is perfectly clear that the company will be deprived of that right if it can now be held liable for the acts of Jones after he had been discharged from liability in the same action with the company for the same wrong, for the judgment in his favor would bar an action of the company against him, or any attempt on the part of the company to compel him to pay the judgment obtained against it. As between him and the plaintiff and as between him and the company, it is res adjudicata that he has done no actionable wrong. The recent case of Jones v. Railway, 106 S.C. 20; 90 S.E., 183, is directly in point, and it is conclusive against the contentions of appellant."

It is this second ground that the learned Justice would eliminate from the cases as not being necessary to their determination and, therefore, obiter dictum. I think that the authorities are overwhelmingly against this contention.

"I do not understand that, if a Judge rest his decision upon two different grounds either of which is sufficient to support the decision, either of the grounds taken can be said to be but an expression of opinion which was unnecessary for the determination of the case and, hence, a dictum orobiter dictum; that is, a dictum entered in passing or merely incidental and unnecessary." Landreville v. Gouin, 6 Ont., 455.

In Kane v. McCown, 55 Mo., 181, it was said that in a certain case a question was presented and discussed "and the opinion of the Court, or a majority of the Court, was expressed on it. The question was, in that case, presented by the instructions, and, though its decision might have been avoided, the opinion was not, therefore, an obiter dictum."

That a decision might have been put upon a different ground, does not place it in the category of a dictum. Clarkv. Thomas, 4 Heisk (Tenn.), 419.

And, where the record presents two or more points, on either of which the decision might turn, and both are fully considered and determined, neither can be considered as adictum. State v. Brookhart, 113 Iowa, 250;84 N.W., 1064. Brown v. R. Co., 102 Wis. 137; 77 N.W., 748; 78 N.W., 771; 44 L.R.A., 579. Hawes v. Water Co., Fed. Cas. No. 6235, affirmed in 104 U.S. 450; 26 L.Ed, 827.

In Florida C.R. Co. v. Schutte, 103 U.S. 118;26 L.Ed., 327, the Court said:

"It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued, and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the Court as was that on any other of the several matters on which the case as a whole depended."

In Union P. Co. v. Mason Co., 199 U.S. 160;26 S.Ct., 19; 50 L.Ed., 134, the Court said:

"Of course, where there are two grounds, upon either of which the judgment of the trial Court can be rested, and the Appellate Court sustains both, the ruling on neither isobiter. * * * Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the Court in respect thereto can, in no just sense, be called mere dictum."

In Ontario Land Co. v. Wilfong, 223 U.S. 543;32 S. Ct., 328; 56 L.Ed., 544, quoting syllabus, it was held:

"Where a decision is based on two grounds either of which is sufficient to sustain it, neither is obiter."

In Chicago, B. Q.R. Co. v. Board (C.C.A.), 182 F., 291; 31 L.R.A. (N.S.), 1117, the Court said:

"It is not the practice of Courts to rest their decisions upon a single ground, or upon the narrowest possible basis of fact. On the contrary, every consideration which is directly controlling of the actual issue tendered is a legitimateratio decidendi * * * [referring to the case above cited from 199 U.S.]. * * * It was earnestly urged by distinguished counsel that all that was said in this second part of the opinion was obiter; but the Supreme Court and this Court held that it had the same binding force as that which was said in support of the first ground of the decision."

In 15 C.J., 953, it is said:

"So also where a case presents two or more points, any one of which is sufficient to determine the ultimate issue, but the Court actually decides all such points, the case is an authoritative precedent as to every point decided, and none of such points can be regarded as having merely the status of a dictum" — citing many cases.

"Where an Appellate Court places its decision on two or more distinct grounds, each is as much an authoritative determination as the other, and neither can be disregarded asobiter dictum." King v. Pauly, 159 Cal., 549; 115 P., 210; Ann. Cas. 1912-C, 1244.

"Where a decision is based on two independent lines of reasoning, neither one is a dictum, but one is as necessary to the decision as the other." Pugh v. Moxley,164 Cal., 374; 128 P., 1037.

In Williams v. Arlington Hotel Co. (D.C.),15 F.2d 412, the Court said:

"All these questions having been fully discussed, and, by the Court, in a carefully prepared opinion, determined, they cannot be treated as obiter. The well-settled law is: `Where there are two grounds, upon either of which the' Appellate Court may rest its decision, and it adopts more than one, `the ruling on neither is obiter, but each is the judgment of the Court and of equal validity with the other.'"

In U.S. v. Title Co., 265 U.S. 472; 44 S.Ct., 621;68 L.Ed., 1110, decided June 9, 1924, it is said:

"Where there are two grounds, upon either of which an Appellate Court may rest its decision, and it adopts both, `the ruling on neither is obiter, but each is the judgment of the Court and of equal validity with the other.'"

But it is insisted, in the Jones and Sparks cases the servant was acquitted of all wrong, while in the case at bar the servant was convicted and a verdict carrying both actual and punitive damages was awarded against him. If, as held in those cases, the judgment as to the servant was resadjudicata as between him and the master, it must have been so in all respects, and the difference between a verdict finding no damages and one finding a limited amount is only a difference in degree; the element of conclusiveness is alike in both. The fact then that under this judgment Dorsey is liable for only $300.00 punitive damages is necessarily a limitation upon the railroad company's right of reimbursement against him upon the payment by it of the judgment of $1,500.00 against it.

It is said in the opinion of Mr. Justice Blease:

"Again in the Federal Courts, it has been held, or certainly indicated, that it would be held that, when two or more persons are sued in the same action for the same tort, evidence as to the wealth of but one of the defendants is not admissible; while in this State such testimony is admitted to be competent."

I concede that this is true under the South Carolina decisions in a case where the defendants are sued as activeparticipants in a willful tort, all responsive directly in punitive damages. I do not concede that it is applicable to a case sounding in compensatory damages only or to a case sounding in punitive damages based upon the willful tort of the servant alone.

The point of my distinction appears to have been entirely missed by the learned justice. I do not contend that in an action against both master and servant based upon a tort, whether negligent simply or willful, participated in by both, an apportionment of damages cannot be had. I yield to the authorities in this State upon that point, as I specifically did in the Jenkins case. And under such circumstances, where the action is based upon the combined willfulness of both, there can be no sound reason why the wealth of one of the defendants, or of each for that matter, is not a legitimate matter of inquiry upon the question of punitive damages, as a just means or basis of the punishment to be inflicted. What I do insist upon is that, where the action is against both, and it is based upon the sole negligence or willfulness of the agent or servant, the effect of apportioning damages necessarily and inevitably destroys the right of the principal or master to reimbursement.

The case of Rowe v. Moses, 9 Rich. Law, 423; 67 Am. Dec., 560, is of no significance in the present issue, for that was a case in which the plaintiff sued the defendant alone for damages on account of an assault and battery committed by the defendant alone upon the plaintiff. It was a claim for punitive damages and it was specifically stated that in such an action evidence of the wealth of the defendant was clearly admissible, as to which ruling I have absolutely no criticism; it is acknowledged everywhere.

So in Burckhalter v. Coward, 16 S.C. 439, which was an action of slander by the plaintiff against the defendant alone, involving of course the element of punitive damages. The Court very properly held that the jury, in fixing the amount of their verdict, might consider the pecuniary condition of the defendant; as to which there is and can be no controversy.

The case of Elms v. Power Co., 79 S.C. 503;60 S.E., 1110, was a suit against the master and servant for a jointwillful tort, in which the Court held that evidence of the wealth of the corporation defendant was admissible; a proposition with which I have no controversy, but which is very far from holding that, in an action based solely upon the willful tort of the servant, the damages for which, actual and punitive, the master upon payment may recoup from the servant, such evidence is admissible.

So in Calder v. R. Co., 89 S.C. 287; 71 S.E., 841; Ann. Cas. 1913-A, 894, the suit was against the Pullman Company and the railroad company for damages resulting from an assault by a stranger upon a passenger while in her berth. A nonsuit was ordered as to the railroad company, and the case proceeded against the Pullman Company alone. Upon the issue of punitive damages, the Court held that evidence as to the wealth of the Pullman Company was admissible; as to which ruling no one could rightly complain. That case, too, does not touch the point at issue.

This misconception of my position is clearly demonstrated by the following extract from the opinion:

"Either it must be placed within the province of the jury to find separate verdicts, or the rule permitting the consideration of evidence of the wealth of the defendants must go out of the issue of punitive damages. There is no middle ground between these two propositions."

There is a plain and just middle ground: If the action is against the master alone, based upon the willful tort of the servant alone, evidence of the master's pecuniary condition is admissible; if it is against the master and servant jointly, based upon the combined willful tort of both, the damages are apportionable and the evidence is admissible; if it is against the master and servant jointly, based upon the sole willful tort of the servant, the damages are not apportionable, the right of reimbursement cannot be disturbed, and the evidence is inadmissible.

It is very true, as stated by Mr. Justice Blease, that the Federal Supreme Court and this Court are at variance upon several phases of the law of damages, compensatory and punitive. The main differences are, as held by the Federal Court: (1) That the master should not be held liable in punitive damages for the willful tort of his servant, in the absence of evidence of authorization, participation, or ratification; (2) that, in an action based upon the joint tort of the master and servant against both, there can be no apportionment of damages either compensatory or punitive; (3) that in an action based upon the joint willful tort of the master and servant against both, evidence of the wealth of either party is inadmissible.

I can readily understand how the third proposition is a necessary corrollary from the second, but I cannot see how either proposition has the slightest bearing upon the question at issue in the case at bar; whether, in an action against both master and servant, based upon either the negligent or willful tort of the servant alone, the damages, either compensatory or punitive, can be apportioned.

I agree with the learned Justice when he says, speaking of punitive damages:

"One of the chief purposes in awarding damages in this class is to punish the wrongdoer, not only to prevent by him a recurrence of the wrongful act, but to deter others from conduct of the same or similar kind. * * * The object is to protect every man, woman, and child from thosewho consciously disregard the rights of their fellows."

This argument would logically and inevitably lead to the adoption of the Federal rule above stated in reference to the liability of a master in punitive damages for the willful tort of his servant — to punish the wrongdoer. Who is the wrongdoer? The master? Certainly not, for it is assumed that the servant is the sole tort-feasor; the master being held liable not because he committed the tort, for it is conceded that he did not, but because of his relation to the servant.To prevent a recurrence by him of the wrongful act; prevent the master from a recurrence of a wrongful act which he did not commit? That will not do; there can be a recurrence only of an act which has before been committed. Toprotect from those who consciously disregard the rights ofothers? If the servant alone has committed the willful tort, how could the master have been guilty of a conscious wrong? That is to say, the master must be punished as a wrongdoer for a wrong which he has not committed, to prevent him from the recurrence of an act which, as to him, has no antecedent, because he consciously committed the act of which another was the sole author, and which he may positively have forbidden the other to commit. This is aside, of course, from the liability of the master in compensatory damages for the willful tort of his servant, committed within the scope of his employment, which is universally conceded.

It is of little moment to inveigh against the principle established by this Court that the master is liable in punitive damages for the consequences of the willful tort of his servant in which he has not participated, but I cannot refrain from calling attention to the incongruity which has resulted from the rule: Under the circumstances stated, the master has recourse over against the servant for reimbursement; in the trial, the plaintiff has introduced evidence of the wealth of the master; the punitive damages are raised thereby; the servant then has to respond to the punitive damages recovered against the master based upon the pecuniary conditionof the master. A rule which leads to such a result cannot be a just one. As is said in the Ilderton case:

"It has been suggested that it is not probable that defendant will sue O'Quinn [the servant] on his liability over, if the judgment be affirmed. Courts decide cases according to the legal rights of the parties, and not according to the probability or improbability of their exercising such rights."

I deferentially suggest that Mr. Justice Blease, who has written the leading opinion in this case, and Mr. Justice Watts, the author of the "clear and vigorous, in brief, dissent" in the Jenkins case, appear less willing to follow the case of White v. McNeily than I am. In the opinion of Mr. Justice Blease, concurred in by Mr. Justice Watts, it is held that, while the rule of nonapportionment of damages announced in the Jenkins case "should continue to be enforced as to compensatory damages, it should be modified so as not to apply to punitive damages."

In the White v. McNeily case, as reported, I find nothing to indicate that the action was for punitive damages. The defendants were sued in trespass, and the evidence showed that they had plundered the plaintiff's house of furniture, and had taken away several of his horses and burnt his dwelling; the total sums awarded amounted to 700 pounds for the destruction of property which the plaintiff valued at1,000 pounds; which excludes the idea that the verdict was for punitive damages; yet in that case apportionment wasallowed.

In Bevin v. Linguard, 1 Brev., 503; 2 Am.Dec., 684, the action was also in trespass for damages on account of an outrageous assault and battery. The plaintiff was assaulted in his dwelling house, a part of which was torn down and his goods thrown about. The verdict was for $500.00 against both defendants, to be paid so much by one defendant and so much by another. The Court held that the trespass was exceedingly outrageous and the damages were not thought immoderate. No suggestion appears in the case that any part of the verdict was for punitive damages, and, comparing its size with the character and circumstances of the assault, that feature manifestly did not enter into the case. The apportionment was allowed.

In Boon v. Horn, 3 Strob., 159, the action was in trespassq. c. f. against eight defendants. The verdict was apportioned $5.00 to each. It appears to have been conceded that the verdict was in permissible form under "the liberty given by our peculiar practice," as Judge Wardlaw terms it. No question of actual or punitive damages was raised, and no differentiation on that line of cleavage was suggested.

In Smith v. Singleton, 2 McMul., 184; 39 Am. Dec., 122, the action was in trespass for assault and battery. The doctrine declared in White v. McNeily was again approved. No allusion is made to punitive damages.

In Rhame v. Sumter, 113 S.C. 151; 101 S.E., 832, the city and a plumber were sued jointly for damages resulting from an automobile running into an open ditch in the street, left in that condition by the plumber. The jury found a verdict for $425.00 actual damages (so stated in the verdict) against the city and a like amount, similarly characterized, against the plumber. The Court, Mr. Justice Watts delivering the opinion, held:

"The verdict of the jury found against each defendant $425.00. This they had the right to do." (Italics added).

No issue of punitive damages entered into the case.

So far, then, as the "clear and vigorous, in brief, dissent" of Mr. Justice Watts in the Jenkins case, commended by Mr. Justice Blease, is concerned, it is apparent that "the rule laid down in Justice Cothran's opinion," is not only not "contrary" to the decisions of this State, but is in conformity with them; and that the contrariness (in a grammatical sense only) is presented in the opinion of Mr. Justice Blease, in which Mr. Justice Watts, who wrote the opinion in theRhame case, directly to the contrary, has concurred.

The effect of the opinion of Mr. Justice Blease, if it should prevail as the judgment of this Court, will be: (1) That in cases of joint negligence on the part of both master and servant, resulting in actual damages only, there can be no apportionment of the verdict; but (2) in cases of joint willfulness on the part of both master and servant, as well as (3) in cases of sole willfulness on the part of the servant, imputed to the master, there may be apportionment of damages.

I deferentially submit that the first proposition is directly in conflict with the case of White v. McNeily and cases cited which have reluctantly followed it, all of which were cases of actual or compensatory damages and all of whichapproved of apportionment. The second proposition is implicitly sustained by the same cases. The anomaly is presented of overruling these cases in sustaining the first proposition, and relying upon them in sustaining the second and third.

Mr. Justice Blease gives three reasons why the Jenkinscase was wrongly decided:

(1) "Because so many of the Judges of this Court expressed themselves favorably to our view prior to the Jenkins decision." Not a single decision has been cited, orcan be found, sustaining this declaration. The Jenkins case was the first case in which the matter under discussion was suggested.

(2) Because "the views of the present Chief Justice (Gary), as expressed by him in many of his opinions, and in many opinions of other Judges with whom he concurred, give us assurance that he, had he participated in the Jenkinscase the majority opinion there would have been the minority opinion of the Court." As I have endeavored to show, the point has never before been presented to the Court; no opinion of the learned Chief Justice or of any of the great Judges who have adorned this Court has been or can be cited to sustain this declaration. It is to me a novel argument, that the conjectural opinion of a justice who did not participate in the decision of the Jenkins case, and has never judicially expressed himself upon the matter at issue, should be appealed to as sustaining one side or the other of such issue.

(3) "Because of the clear and vigorous, in brief, dissent of Mr. Justice Watts, concurred in by the late lamented Mr. Justice Fraser in the Jenkins case, which was as follows: `I dissent from Justice Cothran's opinion as to exception 3; under the authorities quoted by Mr. Justice Cothran, thelaw of this state has been contrary to the rule laid down inJustice Cothran's opinion, and I do not care what the law is in other tribunals; I feel bound to adhere to the law laid down by the decision of this State. The law has been laid down and followed by bench and bar for years, and I see no reason to depart from the decisions.'

"Mr. Justice Cothran" certainly labored in vain, if his opinion in the Jenkins case, be even plausibly amenable to the charge that it was an effort to state a rule contrary to the former decisions of the Court; "to depart from the decisions" laid down and followed by bench and bar. Every South Carolina decision which could be found was cited, explained, and quoted from, and the conclusion was thus stated: "However much the departure from the rule of the common law may be regretted, it has been too firmly adhered to to be now abandoned"; and in this implied regret "Mr. Justice Cothran" would not be ashamed to be associated with the Supreme Court of the United States and with the great Judge O'Neall, who in Smith v. Singleton, 2 McMul., 184; 39 Am. Dec., 122, said:

"The case of White v. McNeily, in 1784, ruled, that the jury in such a case might sever and apportion the damages according to the degree and nature of the offense committed by each defendant. The wisdom of such departure is, Ithink, very questionable; but it has been in practice eversince conformed to."

My effort in the Jenkins case, abortive as it appears to have been to the learned dissenting justices and to the writer of the leading opinion in the appeal under consideration, was to show that, in every South Carolina case which could be found upon the subject, the defendants, among whom it was held permissible to apportion the damages, were direct,active, personal participants in the tort complained of; that the jury under such circumstances might apportion the damages according to the different degrees of the guilt of the trespassers, according to the degree and nature of the offense committed by each defendant" (Smith v. Singleton, 2 McMul., 184; 39 Am. Dec., 122), "agreeable to the degree of guilt of each trespasser (White v. McNeily, 1 Bay, 11); not one of them was a case where the only participant was the servant, and liability was imputed to the master by reason of the relation between them.

It was upon this ground, conceding the binding authority of the decisions which had been announced (White v. McNeily, 1 Bay, 11; Whitaker v. English, 1 Bay, 15; Bevin v.Linguard, 1 Brev., 503; 2 Am. Dec., 684; Smith v. Singleton, 2 McMul., 184; 39 Am. Dec., 122; Rhame v. Sumter,113 S.C. 151; 101 S.E., 832 [not one of which decided the question raised in the Jenkins case]), that it was said:

"In view, however, of the almost solitary position of this Court upon the question, opposed as it is by the authority of the supreme tribunal of the nation, and by almost every other State Court (and criticised as it has been by the Judges who felt imposed [impelled?] to follow it), the rule should be confined to the precise condition which gave it birth."

The "question" referred to was manifestly the rule announced in White v. McNeily, that in cases of actual, not constructive, joint wrongdoers, the jury might apportion the damages. The "condition which gave it birth" was the tort, the basis of the case of White v. McNeily, a description of which I reproduce from the Jenkins case.

"McNeily, a tory, who had joined the British Army in 1780, with a party of marauders, plundered the house of White, burnt it, and carried away his horses. He and two others of the party were afterwards sued by White for the trespass [after the war]. The jury rendered a verdict of 400 pounds against McNeily, 200 against one of the other defendants, and 100 against the third."

These were the circumstances which gave birth to the rule. The three defendants were direct, active, personal participants in the outrage; the defendant McNeily, who raised the question of apportionment, was held "an aider and abetter in the enterprise," the largest verdict having been given against him doubtless by reason of his leadership.

The decision in the cases of Currier v. Swan,63 Me., 323, Lake Erie R. Co. v. Halleck, 78 Ind. App. 495;136 N.E. 39, and Hall v. McClure, 112 Kan., 752; 212 P., 875; 30 A.L.R., 782, cited by Mr. Justice Blease as holding that an attempted apportionment of damages should be stricken out as surplusage and a joint judgment entered against all of the defendants for the full amount assessed against both defendants, were specifically based upon the want of power on the part of the jury to apportion the damages in cases of joint tort. I cannot see therefore how much comfort can be gathered from them.

I think, therefore, that the judgment of the Circuit Court should be reversed as to the judgment upon the verdict for punitive damages, and affirmed as to the judgment of $200 upon the verdict as reduced, for actual damages, jointly against both defendants.

MR. ACTING ASSOCIATE JUSTICE PURDY concurs.