OPINION ON PETITION TO REHEAR
FONES, Chief Justice.Defendants’ petition to rehear asserts that we overlooked the rule of law that a master is not liable under the doctrine of respondeat superior unless the servant is liable. Second, it is said that we overlooked the fact that plaintiff’s attorneys affirmatively induced the trial court to accept the jury verdict, and that waiver and estoppel prevent his reliance on the inconsistency in the verdict.
Evidently we failed to make it clear to counsel that the jury verdict was inconsistent, fatally defective, irreconcilable, and no judgment whatever could be pronounced thereon. The reason that is so is that the master is not liable unless the servant is liable where the only basis for liability of the master is the misconduct of the servant, while acting within the scope of employment. But for that rule, the verdict against defendant railroad companies would have been affirmed by this Court.
We were also fully aware of the entire colloquy between the trial judge and counsel for all the parties to this litigation from which defendants seek to charge plaintiff with waiver and estoppel.
Our reasons for the disposition of this case that we have heretofore made and continue to adhere to, with confidence, are well stated by Mr. Justice Creson in Milliken v. Smith, supra:
“The obligation of every jury is summarized in the oath taken by its members to render a true verdict according to the law and the evidence. This applies whether the jury is trying one or more cases. And where it plainly appears from the verdicts returned by a jury that it has not fulfilled this obligation, but acting upon considerations other than those presented in the law and the evidence has returned irreconcilably conflicting verdicts, it is the duty of the trial court to order the jury to consider further with respect to these verdicts, and if it refuses (which we doubt will ever be the case), to order a mistrial, otherwise this Court must reverse.” (Emphasis added) 405 S.W.2d at 477.
Opinions, comments or assurances of counsel, with respect to the efficacy of a jury verdict do not relieve the trial judge of the duty to see that a verdict is returned upon which a valid judgment can be pronounced, or to declare a mistrial. In our view, it would be of equal logic to hold that defendant railroad companies’ silence and acquiescence in the jury verdict precluded setting that verdict aside. Fortunately for said defendants that is not the law.
The petition to rehear is denied.
HENRY and HARBISON, JJ., and RYDER, Special Justice, concur.
COOPER, J., not participating.