May 3, 1927. The opinion of the Court was delivered by I concur in the opinion of Mr. Justice Cothran, in this cause, in so far as he holds that the judgment should be affirmed as to the defendant Pullman Company. I do not agree with his conclusion that there should be a reversal as to the judgment against the defendant Southern Railway Company. In my opinion, the order of the County Judge, Hon. M.S. Whaley, which will be reported, should stand, and the plaintiff should be allowed to enter up her judgment in accordance with the terms of that order. I shall state, very briefly, the reasons for my view. The matter appears to me to be so plain and simple that I deem it unnecessary to say much in support of my view.
As stated by Mr. Justice Cothran, the plaintiff sued Southern Railway Company and the Pullman Company for injuries and damages "caused by the joint, concurrent, several, *Page 347 and individual acts of negligence, carelessness, recklessness, willfulness, and wantonness on the part of the defendants, both or either of them, their agents and servants. * * *"
It was admitted by all the parties to the action that the Pullman Company was, in certain respects, the agent of Southern Railway Company at the time of the injuries alleged to have been received by the plaintiff.
Clearly, under the law, and so much is conceded in Mr. Justice Cothran's opinion, if the plaintiff's injuries were occasioned by any act of negligence of the Pullman Company while it was acting for its principal, Southern Railway Company, then both companies were liable therefor, the Pullman Company primarily and Southern Railway Company secondarily. There was some proof that the Pullman Company failed in the performance of its own obligations to the plaintiff, and that it also was negligent in the discharge of its duties in its capacity as agent of the railway company. The County Judge refused to grant motions for directed verdict made by both defendants, and this action on his part is approved in the opinion of Mr. Justice Cothran.
To my mind, the charge of the County Judge was clear as to the several liabilities of the two defendants. The jury was instructed by him, at the request of the parties, to the effect that if the Pullman Company, as agent of the railway company, was guilty of negligence, that both companies thereupon became liable to the plaintiff. The jury was directed that in the event they found that the plaintiff's injuries were caused by the delict of the Pullman Company, as agent of the railway company, they should so express their finding by a special verdict. The verdict was:
"We find for the plaintiff the sum of five hundred ($500.00) dollars, against the Pullman Company, acting as agent of the Southern Railway Company." *Page 348
Under the instructions given by the presiding Judge, from which there is no appeal, the jury decided that the plaintiff was entitled to receive as damages the sum of $500. They said that this money should come from the Pullman Company as the agent of the Southern Railway Company. Evidently, the jury understood from the clear instructions of the trial Judge that if the agent was guilty of the delict, the principal was responsible therefor. If the jury had intended to find against the Pullman Company alone, certainly, the words, "acting as agent of the Southern Railway Company," would not have been inserted in the verdict. If the intention had been to find against the railway company alone, there would have been no reference to the Pullman Company in the verdict. The very fact that both companies were specifically named in the verdict showed that it was the intention of the jury to give a finding in favor of the plaintiff against both the defendants. In plain English, the jury said that the Pullman Company was responsible for the damages received by the plaintiff. They further said that the Southern Railway Company was also responsible, because at the time the injuries occurred the Pullman Company was acting as agent of the railway company.
The judgment of the County Court and the order of Judge Whaley should be affirmed in all respects.
This being the judgment of a majority of the Court, it is so ordered that judgment below be affirmed in toto.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE RAMAGE concur.