[4] I concur in the opinion of Justice LOCKWOOD, but feel that it goes too far and unnecessarily announces a rule that is unsound and if unchallenged might become fixed law in this state and defeat many righteous causes.
I do not think that, where the master is sued with his servant on the theory of respondeat superior for damages for the negligence of the servant, a verdict finding the issues against the master only is or should be treated as a finding that the servant was not negligent. *Page 312 It must be admitted that if there was a tort committed by the defendants against the plaintiff it was the act of the agents of the corporation defendant. A corporation acts through its agents and in tort cases, such as negligence, libel, slander, etc., the rule of respondeat superior is applicable. Of course if the agent had committed no wrong the corporation has not. In other words, where, as here, the corporation and its agents are joined as defendants, if the agents are not guilty of libel, the corporation is not, and both should be acquitted of wrongdoing. Where a case is tried before a jury, it is the jury that should determine whether the defendants have committed the tort. The jury does that by its verdict after hearing all the evidence and the court's instructions. The verdict here was
". . . do find for the plaintiff and against the defendant Rosenzweig Sons, Jewelers, Inc., a corporation, and assess his actual damages in the sum of $750.00 and punitive damages in the sum of $750.00."
Thus the triers of the facts found the corporation, through its agents, who were also sued with it, published the alleged libelous matter concerning plaintiff, but failed to return a verdict either for or against the agents. To have been entirely consistent the verdict should have run against the individual defendants also, for, if the corporation was guilty, they, having uttered the libel, were also guilty. Juries' verdicts, however, are not always consistent, and the court that would undertake to administer justice on a requirement that verdicts be so would be woefully disappointed. The verdict against the corporation was, at most, defective. The court should have instructed the jury to return to the jury room and find on the issue of the individual defendants' liability. If it had, I have no doubt the verdict would have been *Page 313 also against such defendants. If the individual defendants had felt the jury would find them not guilty, they no doubt would have requested the court to require a verdict on the issues as to them.
The proper course to take, when the verdict is returned in the form it was here, is stated in Barnes v. Ashworth, 154 Va. 218, 153 S.E. 711; Standard Oil of New Jersey v. Davis,157 Va. 709, 162 S.E. 29. It is only common sense and reason to conclude that the jury thought it was not necessary to return a verdict against the individual defendants. The Washington case,Doremus v. Root, cited by Justice LOCKWOOD in his opinion does indeed hold that a verdict against the master but silent as to the servant who is made a joint defendant is a finding that the latter was not guilty of negligence, and there are other cases that have blindly followed it. But many courts have taken the view that such a verdict is not a finding that the servant was free from negligence. In Verlinda v. Stone WebsterEngineering Corp., 44 Mont. 223, 119 P. 573, 578, after a review of the cases, including the Doremus case, the court says:
"The conclusions reached by jurors are sometimes 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 deemed good as to him, notwithstanding there is no finding as to the other.
"It seems to us that the better rule is that, if the evidence is such that the jury might have found against both the master and the servant, the plaintiff should not be denied his recovery against the master because the jury were unable to agree upon a verdict against the servant, or arbitrarily disregarded the evidence tending to show negligence on the part of the servant. . . . *Page 314
"The plaintiff might have dismissed the action as to Wallace [an employee] and proceeded against the company alone, or he might have proceeded against the company alone in the first instance. He might have insisted upon a verdict as to both defendants. Having elected not to do so, but to take judgment against the company alone his course amounted to a dismissal as to Wallace. Rankin v. C.P.R. Co., 73 Cal. 93, 15 P. 57;Fowden v. Pacific C.S.S.C. Co., 149 Cal. [151], 157,86 P. 178. The failure of the jury to find as to Wallace should be regarded as no finding upon the issues as to him at all."
The most recent cases agree with this holding. Anderson v.Salt Lake City, 79 Utah 324, 10 P.2d 927; Dunbaden v.Castles Ice Cream Co., 103 N.J.L. 427, 135 A. 886, 887. In the last case the court said:
"Some courts have held that the failure of a jury to return a verdict against the servant affords no ground to set aside a judgment rendered against the master because the verdict which ignores the servant should not be deemed or construed as a finding of absence of negligence on the part of the servant, but should be regarded as no finding as to the servant. Upon the rendition of such a verdict the case stands as to the servant as if it had never been tried and the master has whatever right he ever had against his servant. It will be observed that the verdict rendered in the present case is silent as to Grundman [the servant]. We think that such a verdict should be regarded as no finding against him. This view has support in decisions in this state."
See, also, Stith v. J.J. Newberry Co., 336 Mo. 467,79 S.W.2d 447, 459, wherein it is said:
"It has been held that a failure of the jury, through inadvertence or mistake of fact or law or otherwise, to return any verdict as to the servant, but only one against the master, does not present the question of an inconsistent, contradictory, and self-destructive verdict. Whitesell v. Joplin P. Ry.Co., 115 Kan. 53, 222 P. 133; Benson v. Southern Pac. Co.,177 Cal. 777, *Page 315 171 P. 948; Melzner v. Raven Copper Co., 47 Mont. 351,132 P. 552."
However, upon the above verdict the court "Ordered, Adjudged and Decreed, that plaintiff . . . take nothing of or from the defendants, I. Rosenzweig, Newton Rosenzweig and Harry Rosenzweig, or any of them." This judgment was given on the theory that the verdict was a finding that these individual defendants were not guilty of libeling plaintiff. I think the court was not justified in entering the judgment in favor of the individual defendants and that it was serious error for it to have done so. There has been no appeal from such judgment and it has now become final. As long as this judgment stands, the individual defendants are acquitted of libel and, if they are not guilty, the corporation defendant could not be guilty. It is on this ground only that I concur in the opinion of Justice LOCKWOOD reversing the judgment against the corporation.