Tolley v. Engert

CABANISS, P. J., pro tem.

T

his action was brought by Bertha Belle Tolley, widow, and the other plaintiffs, children, of Walter Ennor Tolley, deceased, to recover damages resulting from his death due to the alleged careless and negligent operation of an automobile stage owned by the defendant, Pickwick Stages, and driven by the defendant Engert, as its servant and employee. The complaint further alleges in substance that as deceased, mounted upon a bicycle, was passing southerly along the right-hand side of a public highway at or near its intersection with Santa Inez Avenue in the city of San Mateo, a passenger automobile stage driven by Engert was moving southerly, directly behind said decedent; and that thereupon the defendant Engert while driving the stage recklessly and at an unlawful rate of speed, attempted to pass decedent, who was struck, run upon and killed by the stage. The owner denies the negligence charge and also sets up contributory negligence. The verdict was in this form: “We, the Jury . . . find for the plaintiff, Bertha Belle Tolley, and against the defendant, Pickwick Stages ... in the sum of One Thousand Dollars and we exonerate the driver, M. V. Engert.”

This eccentric and self-stultifying verdict is the counterpart of one considered in

Bradley

v.

Rosenthal & Sunset Telephone Co.,

154 Cal. 421 [129 Am. St. Rep. 171, 97 Pac. 876]. In his opinion, written in that case, Judge Henshaw approvingly quotes the following argument presented by appellant, Sunset Telephone Company: “Appellant argues that the evidence establishes without conflict that if it be responsible at all it is responsible solely because of the relationship of principal and agent found to exist between itself

[441]

and the co-defendant Rosenthal; that not one word of evidence tends to establish any direct personal participation, personal knowledge or personal culpability upon its part, or that its employee Rosenthal was in any way carrying out its express instructions in the particular matter for the doing of which negligence is charged; that under such circumstances the employer is liable only because of the rule of law which holds him responsible, as well for the undirected as for the directed act of the agent within the scope of his employment; that in such kind of cases where there have been no express instructions for the doing of the act complained of in the particular way, the principal and agent, master and servant, are not joint tort-feasors as the law employ^ that term. The employee’s responsibility is primary. He is responsible because he committed the wrongful or negligent act. The employer’s responsibility is secondary, in the sense that he has committed no moral wrong, but under the law is held accountable for his agent’s conduct. While both may be sued in a single action, a verdict exonerating the agent, must necessarily exonerate the principal, since the verdict exonerating the agent is a declaration that he has done no wrong, and the principal cannot be responsible for the agent if the agent has committed no tort. ’ ’