Dissenting Opinion
DeBruler, J.The jury returned the following verdicts:
“We, the Jury, find for the plaintiff and against the defendant Hancock County Bank and assess plaintiff’s damages in the sum of 20,000 dollars. We, the Jury, find for the defendant Charles E. Blue.”
After the verdicts, plaintiff filed a motion for judgment on the evidence in his favor against the defendant Blue. Defendant bank filed its motion for judgment on the evidence in its favor against the plaintiff. The trial court entered its ruling on the motions, and made findings of fact and conclusions of law which read, omitting the formal parts thereof, as follows:
“The Court now being duly advised enters its findings of facts and conclusions of law and enters judgment on the verdict of the jury as to the defendant Charles E. Blue, and enters judgment notwithstanding the verdict of the jury as to the defendant Hancock County Bank; all as per entries filed.
*548 FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court now makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. That Plaintiff’s amended Complaint For Malicious Prosecution predicates the liability of the Defendant Hancock County Bank as principal upon the acts of the agent and officer, the Defendant Charles E. Blue.
2. That Defendant Hancock County Bank is an Indiana corporation.
3. That Defendant Charles E. Blue was an officer of and employed by the Defendant Hancock County Bank and he was acting at all times for and on behalf of the Defendant Hancock County Bank in said capacity.
4. That the verdict of the jury was in favor of the Defendant Charles E. Blue and against the Defendant, Hancock County Bank.
CONCLUSIONS OF LAW
1. When liability is sought on the theory of respondeat superior, the liability of a principal must be predicated upon the liability of its agent or officer acting for and on behalf of the principal.
2. A verdict discharging an officer or agent from liability while acting in the capacity of an agent or officer of a principal discharges the principal from any and all liability.
3. The verdict in favor of the officer Charles E. Blue determining that he was not liable amounts to a finding that the Defendant, principal, Hancock County Bank is not liable to the Plaintiff since the Defendant Hancock County Bank, being a corporation, can only act through its officers, employees and/or agents and therefore the Defendant Blue being entitled to a judgment in favor of himself and against the Plaintiff based on the verdict of the jury, the Defendant Hancock County Bank is entitled to a judgment in its favor and against the Plaintiff for said reason.
THEREFORE, the Count finds that judgment should be entered in favor of both Defendants and each of them against the Plaintiff and enters judgment accordingly.”
In my view of the trial court rulings quoted above, the trial court did not base its judgment for the defendant Bank *549upon any consideration of the nature or weight of the evidence submitted at the trial The findings of fact and conclusions of law set out above in full, contain no reference to the insufficiency of the evidence to support the verdict against the defendant Bank. Rule TR. 50. What therefore may be dismissed at the outset of this case as unfounded is any assumption that may arise from the denomination of the two motions filed as TR. 50 motions, that the trial court set aside the verdict against the defendant Bank as against the weight of the evidence.
The trial court here, has entered a judgment contrary to the verdict of the jury against the defendant Bank. In so doing, the trial court has applied a principle of law which gives full legal effect to the verdict in favor of the defendant Blue and nullifies the effect of the verdict against the defendant Bank. There is no such rule applicable here. The issue before us is: What is the proper legal construction to be put on this jury verdict? Childress v. Lake Erie and Western R.R. Co. (1914), 182 Ind. 251, 105 N. E. 467, cited by the majority is stare decisis in this case, and requires that this judgment be set aside as contrary to law, and that this case be remanded to the trial court for a new trial. In Childress, supra, this Court had before it the following jury verdict:
“We, the jury, find for the plaintiff, and against the defendant, the Lake Erie and Western Railroad Company, and assess her damages at $6,000.00. And find for the defendant, Patrick Haggerty.”
In that case, Patrick Haggerty was the engineer on a train, which was owned and operated by the Lake Erie and Western Railroad Company, which struck and killed the plaintiff’s husband at an intersection. The trial court entered judgment against plaintiff and for both defendants. This Court reversed the judgment without prejudice to either party and remanded for a new trial. In so determining this Court said:
*550“By this verdict the jury found, in effect, that appellee company was liable in damages because the statutory signals were not given, while Haggerty, the engineer, was not liable because the proper signals were given. No other construction is possible under the averments of appellant’s complaint since it does not charge that it was the duty of any servant of appellee company, other than Haggerty, to give said signals, or that said company violated through any other servant the duty placed on it by statute. Such a verdict is contradictory and absurd, and cannot be made the basis of a legal judgment.”
The verdict and judgment in Childress and in the case before us are identical for legal purposes. The reasoning of the Childress case applies equally here. The verdict against the defendant Bank in the case on appeal which admittedly predicates liability of the defendant Bank upon the principle of respondeat superior alone, is tantamount to a jury determination that the acts of the defendant Blue constituted the tort of malicious prosecution; and the verdict for the defendant Blue is tantamount to a jury determination that those same acts did not constitute a malicious prosecution. The two verdicts are therefore contradictory and cannot support a lawful judgment. I therefore vote to reverse the judgment of the trial court and remand for a new trial.
Hunter, J., concurs.Note.—Reported in 289 N. E. 2d 728.