against the others. 8 Again, it is held in some jurisdictions that if an execution is sued out on a judgment against a joint trespasser it is a bar, as it shows a final election, so that the others would be discharged.85 But a satisfaction of one judgment does not bar the collection of the costs in the others, which may be enforced by execution.86 A satisfaction or release of one is a release of all the joint trespassers, and this is so although the release expressly stipulates in so many words that the other defendants shall not be released.87

Where an injury may be charged to several persons by reason of the failure to observe some contractual duty, and the act or omission does not amount to a positive wrong, only the person who assumed to perform the duty is chargeable for the neglect. Thus in the case of a common carrier, it is usually the servants of the carrier to whose neglect the injury is attributable, but the action is against the carrier, as the contractual relation is with him alone.88 Yet if the servant does a positively wrongful act he becomes liable to the party injured irrespective of contract.89 One may become responsible personally, or jointly with his employer, where he has failed to act with such vigilance and prudence as is required by

84 Brinsmead v. Harrison, L. R., 6 C. P. 584 (Eng.).

85 Fleming v. McDonald, 50 Ind. 278.

86 First Nat. Bank v. Piano Co., 45 Ind. 5; Ayer v. Ashmead, 31 Conn. 447. 87 Chetwood v. California Nat'l Bank, 113 Cal. 414; Ellis v. Bitzer, 2 Ohio 89; Aldrich v. Parnell, 147 Mass. 409; Chicago, etc., R. R. Co. v. Hines, 82 Ill App. 488. In the last case it was held that a mere acceptance of money from a joint tort-feasor will not discharge the others if there is no satisfaction or release.

ss Richardson v. Kimball, 28 Me. 463.

89 Burnham v. Grand Trunk R. R. Co., 63 Me. 298.

the nature and responsibility of the position he holds.90

19. Same subject-How the joint liability may be determined.-One's connection with a tort or wrongful act in combination with others is established in the same way as his connection with it would be established if he alone were responsible for its commission; he may have an actual hand in its commission, or simply direct or advise the act as done by the hand of another, or, being interested in the act done, subsequently ratify the same. As stated by a Vermont court, "All who aid, advise, command, or countenance the commission of a tort by another, or who approve of it after it is done, are liable, if done for their benefit, in the same manner as if they had done the act with their own hands; and proof that a person is present at the commission of a trespass without disapproving or approving of it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance, and approved it; and was thereby aiding or abetting the same.""1 So, in an action of tort, the fact that one acted as agent or servant or at the request of another, will be no defense; neither will the fact that he is acting as a trustee or public officer.92

"In respect to negligent injuries, there is considerable difference of opinion as to what constitutes

90 Hutchinson v. Ry. Co., 5 Exch. 343 (Eng.); Johnson v. Barber, 10 Ill. 425.

91 Mack v. Kelsey, 61 Vt. 399; Mason v. Copeland & Co., 27 R. I. 232, LEADING ILLUSTRATIVE CASES.

92 Blue v. Briggs, 12 Ind. App. 105.

joint liability. No comprehensive general rule can be formulated which will harmonize all the authorities. The authorities are, perhaps, not agreed beyond this, that where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. The weight of authority will, we think, support the more general proposition, that, where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action."'93

Again, it is said: "If two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the tort is joint, and upon well-settled principles, each, any, or all of the tort-feasors may be held. But when each of two or more persons owes to another a separate duty, which each wrongfully neglects to perform, then, although the duties were diverse and disconnected, and the negligence of each was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint, and the tort-feasors are subject to joint and several liability. 9994 So where two persons negligently passed the plaintiff on motorcycles, one on each side, frightening his horse and injuring him, both were held liable.95 And where two separate fires were set by different

93 Cooley, Torts (student's ed.), p. 92; Railway Company v. Durand, 65 Kan. 380, LEADING ILLUSTRATIVE CASES.

94 Matthews v. Delaware, etc., R. R. Co., 56 N. J. L. 34. 95 Corey v. Havener, 182 Mass. 250.

individuals, which, uniting, destroyed the plaintiff's property, the two persons were held to be jointly liable.96 But where the dogs of different owners unite in doing damage, a joint action against the owners cannot be maintained."7

A servant, though in the conduct of the master's business, makes himself liable jointly with the master for his tortious acts committed while conducting the business. He is liable for the wrongful act because it is his duty to abstain from injuring others; the master is liable because he is chargeable with the servant's acts within the scope of the service or agency, and they are both liable jointly because the relation of master and servant identifies them as being connected with the wrongful act.98 So the act of a partner in connection with the partnership business, resulting in injury, charges all of the partners jointly and severally for his act, except, perhaps, where the same is malicious.99

20. Assessment of damages against joint tortfeasors. "If the injuries caused by the concurrent acts of two persons are plainly separable, so that the damage caused by each can be distinguished, each would be liable only for the damage which he caused; but if this is not the case, all the persons who con

96 McClellan v. St. Paul, etc., R. R. Co., 58 Minn. 104.

97 Nierenberg v. Wood, 59 N. J. L. 112; Dyer v. Hutchins, 87 Tenn. 198. And where several persons located on a stream of water, each, in conducting his own separate business, contributed refuse and filth to the stream, it was held that they were not jointly liable. Chipman v. Palmer, 77 N. Y. 51; Gallagher v. Kemmerer, 144 Pa. St. 509.

98 Schumpert v. Southern Ry. Co., 65 S. C. 332, 338.

99 Miller v. Phenix Ins. Co., 109 Ill. App. 624; Austin v. Appling, 88 Ga. 54; Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90.

tribute to the injury by their negligence are liable, jointly or severally, for the whole damage. It is immaterial how many others have been in fault, if the defendant's act was the efficient cause of the injury. Therefore, in an action against one who, by negligence, inflicted an injury which would naturally cause death, it is no defense to show that the injured person was so unskillfully treated as to hasten his death, or that by proper treatment his life would have been saved." And what is true of those who have been jointly negligent to the injury of another is much more so if the injury was caused intentionally by two or more.

The burden of proving the amount of damages which should be assessed is upon the plaintiff and must not be left to mere guess-work. But if, through no fault of the plaintiff, it is impossible to accurately show the damage and the amount must, in part at least, be left to the estimation of the jury, the wrongdoers cannot complain of the amount of the verdict unless it be so great as to show passion or prejudice.

As exemplary damages are recoverable only where actual malice animated the wrongdoer, it follows that where the injured one elects to sue all the joint tort-feasors, he cannot have exemplary damages unless all have acted from bad motives. To recover exemplary, as well as compensatory, damages, the plaintiff must sue such one or ones as have been actuated by malice, and no others. The only exception to this rule would be that where plaintiff has no choice of suing severally but must join all the defend1 Shearman & Redfield, Negligence, § 31.

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