sued by the injured party either jointly or severally, or by joining two or more of them, at the option of the plaintiff.52 Thus, where a person is injured by the defective construction or negligent management of a bridge connecting the territory of two cities, each being under obligation for its maintenance, he may sue one or both of the cities.53 So, where a switchman in the employ of two railroad companies, both contributing to his wages, was injured by a defect in a track used in common by both companies, he might sue one or both of the companies.54 There was also a joint and several liability where two persons furnished horses and a third furnished a carriage, and another was injured by the mismanagement of the team and carriage. The fact that persons who have diverted water to the injury of one having a prior right do not claim jointly or by common right, will not relieve them from joint liability for the resulting damages where, as against the plaintiff, they all claim the right to divert the water, and their combined acts resulted in the plaintiff's damage.56 A contractor and the owner of property have been held to stand in the relation of joint tort-feasors to an injured employé of the contractor, where the owner knowingly furnished an insufficient founda 55 52 South Bend Man. Co. v. Liphart, 12 Ind. App. 185; s. c. 39 N. E. Rep. 908; Vary v. Burlington &c. R. Co., 42 Iowa 246; Cline v. Crescent City R. Co., 41 La. An. 1031; Bryant v. Bigelow Carpet Co., 131 Mass. 503; Churchill v. Holt, 127 Mass. 165; Hawkesworth V. Thompson, 98 Mass. 77; Lyman v. Hampshire Co., 140 Mass. 311; Stone v. Dickinson, 5 Allen (Mass.) 29; Raney v. Lachance, 96 Mo. App. 479; s. c. 70 S. W. Rep. 376; Brook v. New York &c. R. Co., 5 Daly (N. Y.) 454; Masterson v. New York &c. R. Co., 84 N. Y. 256; s. c. 3 Am. & Eng. R. Cas. 408; Pollett v. Long, 56 N. Y. 205; Chipman v. Palmer, 9 Hun (N. Y.) 517; s. c. aff'd, 77 N. Y. 54; Arctic Fire Ins. Co. v. Austin, 3 Hun (N. Y.) 197; Slater v. Mersereau, 64 N. Y. 147; Colegrove v. New York &c. R. Co., 6 Duer (N. Y.) 382; s. c. aff'd, 20 N. Y. 492; Matthews v. Delaware &c. R. Co., 56 N. J. L. 34; Boyd v. Watt, 27 Ohio St. 268; Klauder v. McGrath, 35 Pa. St. 128; Boyd v. Philadelphia Ins. Patrol, 113 Pa. St. 269; Peckman v. Burlington, Brayt. (Vt.) 134; Lull v. Fox &c. Imp. Co., 19 Wis. 102. 53 Braum v. Fairhaven, 47 Vt. 386. See also, Lyman v. Hampshire Co., 140 Mass. 311; Peckham v. Burlington, Brayt. (Vt.) 134; Weisenberg v. Winneconne, 56 Wis. 667. 54 Vary v. Burlington &c. R. Co., 42 Iowa 246. 55 Dany v. Chamberlain, 4 Esp. N. P. 229; Bishop v. Ely, 9 Johns. (N. Y.) 294. 50 Union Mill &c. Co. v. Dangberg, 81 Fed. Rep. 73. See Saint v. Guerrerio, 17 Colo. 448; Blaisdell v. Stephens, 14 Nev. 17; s. c. 33 Am. Rep. 523; Foreman v. Boyle, 88 Cal. 290; Miller v. Highland Ditch Co., 87 Cal. 430; People v. Gold Run Ditch &c. Co., 66 Cal. 138; s. c. 56 Am. Rep. 80; Hillman v. Newington, 57 Cal. 56. But under Montana Comp. Stat., § 1260, providing that in suits instituted for the protection of water-rights and for wrongful diversion of water the damages may be assessed and apportioned against one or more of the defendants, an action cannot be maintained jointly against several defendants to recover damages to crops because of wrongful diversion of irrigation water by their separate acts, in the absence of an allegation authorizing equitable relief: Miles v. Du Bey, 15 Mont. 340; s. c. 39 Pac. Rep. 313. tion, and the contractor, knowing thereof, put his employés to work upon the structure, which gave way and caused the injury.57 So, it has been held that the owners of adjoining lots are jointly and severally liable in damages for the death of a person, caused by the falling of a wall erected on such lots, and allowed to remain unsupported after it had begun to incline toward the street and was liable to fall into the street.58 There is a holding that the joint owners of a stallion are jointly and severally liable for negligent injury to a mare during service. But if two persons are engaged in a common purpose not in itself unlawful, and a third person is injured by the sole negligence of one of them, the person through whose negligence damage accrued must be sued alone.60 It has been held that the directors of a bank at different periods cannot be joined in an action for damages for permitting a cashier of the bank, during the combined periods, to misappropriate money of the bank.61 59 § 7436. Actions against Telegraph Companies.-It is the settled law of England that the obligation of a telegraph company to use due care and skill in the transmission of messages is one arising wholly out of contract, and that, too, with the sender. Consequently in that jurisdiction the company will not be held liable to the receiver of the telegram, even for misfeasance,-as, where the plaintiffs, merchants at Valparaiso, received a message erroneously directed to them by the company's agents, purporting to come from their branch house at Liverpool, instructing them to ship barley, and they did so, and great pecuniary loss resulted in consequence of a fall in the market. The message was, in fact, neither sent by the Liverpool branch nor intended for the plaintiffs, but was sent by another Liverpool firm to their correspondent at Valparaiso. It was held that the plaintiffs owed the defendants no duty growing out of contract, as the only contract made was with the person employing them to send the message, nor were they liable by reason of negligence; because, said Cotton, L. J., "it is impossible to suppose that the company in the ordinary course of their business warrant that the message comes from a particular person, for they would thereby make a representation the truth of which, in many cases, they cannot ascertain."62 S7 Consolidated Ice Mach. Co. v. Keifer, 134 I. 481; s. c. 25 N. E. Rep. 799; 10 L. R. A. 696; aff'g s. c. 26 Ill. App. 466. Simmons v. Everson, 124 N. Y. 319; s. c. 26 N. E. Rep. 911; 36 N. Y. St. Rep. 265. Newman v. Stuckey, 57 Hun (N. Y.) 589; s. c. 32 N. Y. St. Rep. 876; 10 N. Y. Supp. 760. The Co Boyd v. Philadelphia Ins. Patrol, 113 Pa. St. 269. 61 Sayles v. White, 18 App. Div. (N. Y.) 590; s. c. 46 N. Y. Supp. 194. 62 Dickson v. Reuter's Tel. Co., 2 C. P. Div. 62; s. c. aff'd, 3 C. P. Div. 1. The remarks of the learned justice would seem to apply only in cases of forged telegrams. The courts of this country passing upon this subject have adopted rules precisely to the contrary. Here it is held that the receiver of the message is privy to the contract between the sender and the telegraph company. Woodward, J., in a leading case, said: "It seems reason-able that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives as of him who sends the message. In point of fact, the fee is often paid on de-livery; and I am inclined to think the company ought to be regarded as the common agent of the parties at either end of the wire." But,. however this may be, the learned judge was clear that the company might be liable for misfeasance to third parties.63 On this principlea telegraph company was liable to the receiver for the negligence of its operator in consenting to send a dispatch in the name of, and purporting to come from the cashier of a bank, dating it at another station at the request of a person known to the operator not to be such cashier, who presented no evidence of authority to use the cashier's name, and which message, addressed to a banking-house, held out such person as entitled to credit for a large amount. So, also, if the agent of a telegraph company at one of the stations, with power to delegate his authority, employs another person to transmit and receive messages, and such third person sends a false message purporting to come from the cashier of a bank, directing another bank to pay a fictitious person a sum of money, and the sender then personates the fictitious person and obtains the money, without negligence on the part of the bank, the telegraph company will be responsible to the bank thus receiving and acting upon the message.65 Where an action is given by statute for neglecting or refusing to transmit a dispatch by telegraph, it has been held that if a telegraph company desires another company to receive and forward the message which has come over its line, the company so desiring the telegram to be sent is the proper party to sue for the penalty in case of refusal; and this, notwithstanding the blank upon which the sender wrote the telegram contains a printed heading of the terms and conditions on which. the company receives telegrams to be transmitted, stipulating that it force of this argument is not perceived in cases like the one in which it was made, where the mistake arose wholly from the negligence of their agent in deciphering the dispatch. es New York &c. Telegraph Co. v. Dryburgh, 35 Pa. St. 303. See also, Western Union Tel. Co. v. Fenton, 52 Ind. 1; De la Grange v. South Western Tel. Co., 25 La. An. 383; De Rutte v. Albany &c. Tel. Co., 1 Daly (N. Y.) 547, 556; s. c. 30 How. 64 Elwood v. Western Union Tel. Co., 45 N. Y. 549. 65 California Bank V. Western Union Tel. Co., 52 Cal. 280; s. c. 5. Cent. L. J. 265. will not "be held liable for any errors or neglect by any other company over whole lines this message may be sent to reach its destination, and this company is hereby made the agent of the signer of the message, to forward it over the line of other companies when necessary. " But it has been held that where a company receives a telegram and forwards it to a connecting line for delivery to a point beyond the receiving line, each company is responsible for its own acts. only, in the absence of special arrangements between the companies or with the sender, even though the charge was paid for the whole distance to the receiving company, and it was customary with the connecting line to receive messages from the receiving company for transmission."7 In Texas, however, the principle seems to be well established that the receiving company is liable for the acts of the company to which it delivers messages to be forwarded to their destination, where the receiving company receives the messages for transmission to their destination, and accepts the whole charges.68 $7437. Actions against Both Master and Servant.-In those cases where the injury done by a servant was in pursuance of a direct command of the master, or where the master has made it his own by subsequent ratification, and where at common law the form of the action against the master would be trespass, the servant may be joined in the same action with the master; for in trespass all are principals, he who commands the trespass as well as he who commits it.69 But in those cases where the wrong consists in the manner in which the servant has executed a lawful order of the master, they cannot in all cases be joined; because, while the action against the master is case, that against the servant may be trespass, as where his act is a direct act of force.70 Another reason given for this con Thurn v. Alta Tel. Co., 15 Cal. 472; Squire v. Western Union Tel. Co., 98 Mass. 232; De Rutte v. New York &c. Tel. Co., 30 How. Pr. (N. Y.) 403; s. c. 1 Daly (N. Y.) 547; Leonard v. New York &c. Tel. Co., 41 N. Y. 544; United States Tel. Co. v. Western Union Tel. Co., 56 Barb. (N. Y.) 46. 67 7 Baldwin v. United States Tel. Co., 45 N. Y. 744; s. c. 6 Am. Rep. 165; rev'g s. c. 6 Abb. Pr. (N. S.) (N. Y.) 405; 54 Barb. (N. Y.) 505; 1 Lans. (N. Y.) 125. See also, Western Union Tel. Co. v. Munford, 87 Tenn. 190; s. c. 10 S. W. Rep. 318; 10 Am. St. Rep. 630; 2 L. R. A. 601. Smith v. Western Union Tel. Co., 84 Tex. 359; s. c. 19 S. W. Rep. 441; 31 Am. St. Rep. 59; Western Union Tel. Co. v. Lyman, 3 Tex. Civ. App. 460; s. c. 22 S. W. Rep. 656; Western Union Tel. Co. v. McNeod (Tex. Civ. App.), 24 S. W. Rep. 815; Western Union Tel. Co. v. Shumate, 2 Tex. Civ. App. 429; s. c. 21 S. W. Rep. 109; Western Union Tel. Co. v. Taylor, 3 Tex. Civ. App. 310; s. c. 22 S. W. Rep. 532. e Hewett V. Swift, 3 Allen (Mass.) 420; s. c. 10 Am. L. Reg. 505; Whitamore v. Waterhouse, 4 Car. & P. 383, per Parke, J. Compare Moreton v. Hardern, 6 Dow. & Ry. 275; s. c. 4 Barn. & Cress. 223. 70 Parsons v. Winchell, 5 Cush. (Mass.) 592. clusion is, that in these cases, the wrong proceeding directly from the servant, and not directly from the master, the latter, if compelled to pay damages, would have an action over against the former; but he would not at common law be entitled to such an action, where the judgment went against both as joint tort-feasors." This reason, however, is not conclusive against joining them, for it is believed that, under the codes, joint actions are constantly maintained by travellers who have been injured in consequence of obstructions in highways, against the wrong-doer who was the author of the obstruction and the municipal corporation which suffered it to continue; and yet the latter, if compelled to satisfy the judgment, is entitled to a recovery over against the former. The question, however, is not clear upon authority even at common law. In the old case of Michael v. Alestree,72 a master sent his servant to train two ungovernable horses in Lincoln's-Inn Fields, and, the servant being unable to govern them, they ran upon plaintiff, injuring him. An action on the case was sustained against both master and servant, the wrong imputed to the master being the sending of such horses to be trained in such a place. On the contrary, in Wright v. Wilcox, a joint action on the case was brought against the father and his son for the willful act of the latter in driving his father's wagon over a boy and injuring him. Cowen, J., said that in a case of strict negligence by a servant, while employed in the service of his master, he saw no reason why an action could not lie against both jointly; but it was held that the father was.not liable because the act of the son was willful. In Moore v. Pittsburg R. Co., a joint action of tort-which, in Massachusetts, appears to cover the ground of both trespass and case at common law was brought against the railroad company and its conductor, for the act of the latter in ejecting the plaintiff from one of its trains under pretense that he had not paid his fare. Thomas, J., saw difficulty in joining the corporation with its servant in the same action; but the question was not fairly presented, for the jury found a verdict in favor of the conductor, though against the corporation; and this was held to relieve the difficulty, if any existed. Under the codes of several of the States, which, as is well known, abolish forms of action, the master and the servant may be joined in one action.75 71 Parsons v. Winchell, 5 Cush. (Mass.) 592. 72 22 Lev. 172; S. C. sub nom. Michell v. Allestry, 1 Vent. 195; s. c. sub nom. Mitchil v. Alestree, 3 Keb. 650. 73 19 Wend. (N. Y.) 343. 744 Gray (Mass.) 465. 75 Montgomery &c. R. Co. v. Cham 73 bers, 79 Ala. 338; Johnson v. Magnuson, 68 Ill. App. 448; s. c. 2 Chic. L. J. Wkly. 99; Hinds v. Harbou, 58 Ind. 121; Wright v. Compton, 53 Ind. 337; Hewett v. Swift, 3 Allen (Mass.) 420; s. c. 10 Am. L. Reg. 505; Toomey v. Donovan, 158 Mass. 232; s. c. 33 N. E. Rep. 396; Fort v. Whipple, 11 Hun (N. Y.) 586; |