good citizens of the Commonwealth, in a loud voice uttered these words: "Sol you know what you did, you forged Ed. Brady's name to a note in Harrisburg;" which are base and defamatory, nd if true, subject him to an indictment for a crime involving moral turpitude or subject him to an infamous punishment.

A plea of not guilty and justification was entered by the defendants. Upon the trial in this case the evidence showed that Sadie Meashey uttered the above quoted words at the time and place of the hearing before C. D. Conrad, Justice of the Peace in the Borough of Middletown, that the defendant Norman Meashey, her husband was then the defendant in the hearing on an action of assumpsit before the said Justice of the Peace and that she uttered the said words in the presnce and within the hearing, of the Justice, the plaintiff in this case and a number of other citizens of this Commonwealth, and that she testified and uttered the words after she had been sworn, in her husband's behalf in trial then being had, her husband also being then and there present and defending his own case. We think it was for the jury to determine from the evidence whether the husband was then and there present and heard the words which his wife spoke in his behalf. We think it was also for the jury to determine from the evidence in the case whether or not under all the circumstances the words were spoken to assist her husband, the defendant in the case, then being heard by the Justice, and whether or not he permitted them to be uttered, and approved of the utterance for the beneficial effect in his behalf upon the Justice hearing the case. There was no evidence that he restrained or contradicted her. The action had been brought against the defendants as joint tort feasors. The evidence showed that the remarks were made in his presence and it was left to the jury as to whether the words heard by him and were for his benefit and approved by him at the time. The jury found for the plaintiff and against both the defendants and it must be concluded that the jury regarded the words thus spoken by his wife in his presence at the trial at which he was the defendant intended for his benefit, and that he heard them and that he was willing to receive that benefit and therefore approved the same. We think under the law and the evi

dence, the jury was justified in finding and rendering the verdict it did, and the motion for judgment upon the judgment non obstante veredicto is therefore overruled and judgment upon the verdict is directed to be entered in favor of the plaintiff and against the defendants upon the payment of the jury fee.

ELLENBERGER v. KALCIC, ET AL.

Negligence-Husband and Wife-Master and Servant-Liability of Husband for Wife's Independent Torts-Master and Servant as Joint Defendants-Act of June 3, 1887, P. L.; 332 June 8, 1893, P. L. 344; May 25, 1887, P. L. 271; April 11, 1884, P. L. 536.

1. A husband is not liable in damages for an independent tort committed by his wife.

2. The dictum of Hess v. Heft, 3 Superior Ct. 582, to the effect that the acts of June 3, 1887, P. L. 332, and June 8, 1893, P. L. 344 have not altered the common law rule which makes the husband liable for his wife's independent torts, is not supported by later decisions.

3. It is proper in a case like the present one to join as defendants in one action the servant who actually committed the tort by reason whereof damages are claimed, and the master who is responsible on the doctrine of respondent superior. Each is preliminary liable for the same tortious act, and their joinder as defendants does not infringe their rights.

4. It is a question whether successive actions against master and servant, for the same tort, could be sustained (Betcher v. McChesney, 255, Pa., 394.

Motion for judgment non obstante veredicto C. P. of Washington County, -No. 317 May Term, 1917.

Lloyd O. Hart and T. Jeff Duncan, for the plaintiff. Wiley & Marriner and Hamilton & Pipes, for the defendant.

Brownson, J., February 11, 1920.-The defendants are husband and wife. The husband was on January 26, 1917, the owner of a motor car, used in and for the business of carrying passengers for hire, of which business he was the proprietor. The wife, in the course of this business, was on the day aforesaid engaged in operating this car, upon a public street in the borough of Burgetts

town, as the servant of her husband. The car, while so being driven by her, collided with a car belonging to and driven by the plaintiff, with the result that certain injuries were inflicted upon the plaintiff and upon his car. The jury have found that the collision, and the injuries resulting therefrom, were caused by negligence in the manner in which Mrs. Kalcic operated her husband's car, and have rendered a verdict for damages against both of the defendants and in favor of the plaintiff. The defendants have moved for judgment non obstante veredicto having upon the trial presented a point in writing asking for binding instructions in their favor. The question intended to be raised by that point and upon this motion, relates to the right of the plaintiff to maintain a joint action against these defendants for the injury complained of.

The plaintiff justifies the bringing of the suit against the defendants jointly upon two grounds. His first position is that the defendants being husband and wife, and the negligence complained of being a tort committed by the wife in her husband's absence and without his actual participation in or direction to commit it, both are liable in a joint action therefor; the wife because it was her own personal tort, and the husband because the modern legislation respecting the rights and liabilities of married women has not taken away nor modified the husband's common-law responsibility for his wife's torts. In support of the latter proposition plaintiff's counsel have cited to us a dictum contained in the case of Hess v. Heft, 3 Pa., Superior Ct., 582 to the effect that the acts of June 3, 1887, P. L. 332, and June 8, 1893 P. L. 344, have not altered the common-law rule that a husband is liable for a tort committed independently by his wife. In this broad and unqualified form, this dictum, the words of which probably go beyond what was the thought of the writer would be opposed to what was said by the Supreme Court in Kuklence v. Vocht, 21 W. N. C. 521; and later cases lay down the doctrine that under the act of June 8, 1893, L. 344, a husband is not liable in damages for an independent tort committed by his wife: Gustine v. Westenberger, 224 Pa. 455, 460 Whitehouse, v. Wisser, 40 Co. Ct., 463; Smith v. Machesney, 238 Pa., 538, 541; Hinski v. Stein, 68 Pa. Superior Ct., 441; Crouse v. Lubin, 260

Pa. 329, 333, 334. The grounds for holding the latter view are reasoned out in the opinions of Judge Haymaker, in Whitehouse v. Wisser, and Judge Head, in Hinski v. Stein, as resting upon the doctrine, cessante ratione legis, cessat ipsa lex. We think, in view of the fact that Mr. Kalcic had no actual participation personally in his wife's tortious act, which was not committed by his direction, that the mere relationship of husband and wife does not in this case render him liable, jointly with her, for that act.

The other ground upon which the plaintiff stands is the existence of the relation of master and servant, which was and is undisputed; the position being that the wife is liable for her own personal negligence, and the husband, under the rule of respondeat superior, is also liable for it, because it was committed by her while acting as his servant in the course of his business, and each being liable therefor, they are properly joined as defendants in the one action.

The defendants' position is that, while the master and the servant may be sued severally for an injury occasioned by the latter's negligence, they are not liable to suit jointly when the negligent act was not in any way actually participated in by the former, and his only liability is in the character of master, under the maxim respondeat superior.

According to a distinction drawn in some of the cases, the instances in which the master and servant are not jointly suable are those in which the injury was wilfully inflicted by the servant in the absence, and without the direction of the master. For a rule that a joint suit cannot be maintained for such an injury there would a substantial reason. Assuming the facts to be such that each is liable for the injury, because in inflicting it the servant did not go entirely outside the course or scope of his employment, yet the causes of action against them would be different in their natures: the right of action against the servant for a wilful injury would be in trespass vi et armis, while that against the master would be in trespass on the case: Drew v. Peer, 93 Pa. 234, 240, 241. Inasmuch as the Procedure Act of 1887. P. L. 271, in prescribing one statutory form of action for injuries formerly redressable in trespass vi et arm's and trespass

on the case, made no change in the causes of action, this reason would probably still hold in Pennsylvania. In the case at bar, the plaintiff, in one part of the statement of claim, when describing the negligence of Mrs. Kalcic, uses the word "wanton," coupled with other adjectives. This word has various meanings. In the connection in which it is used, and interpreting it in the light of the immediate context and of subsequent clauses in the statement, we are of opinion that it was not used for the purpose of averring, and that the statement as a whole does not charge that Mrs. Kalcic inflicted a wilful and intentional injury upon the plaintiff, but that the gist of the cause of action stated is negligence. At the trial no evidence to show a wilful or intentional injury was offered, the claim there advanced by the plaintiff being for compensation for an injury occasioned by negligence purely.

The precise question which we have to consider, then, is whether when a servant, while engaged in work for the master, performs it in a negligent manner, whereby a third person is injured, and the servant is liable for such injury because the lack of care which caused it was his own personal neglect of duty, while the master is also liable therefore because he is under the law responsible for the servant's negligence, these respective liabilities can be enforced in one action.

We have not been referred to, and have not discovered, any decision upon this precise question in Pennsylvania. The cases in this state which have been cited to us by counsel for their bearing upon it are not in point, because not involving the strict principle of respondeat superior. The question was raised by counsel but not decided by the court in Durkin v. Coal Co., 171 Pa. 193. There is a dictum, favorable to the plaintiff, in Wenger v. Rohrer, 3 Pa. Superior Ct. 596, but we have not found any case the decision of which depended upon a determination of the question. The authorities in other jurisdictions are in great conflict. They may be found collected in 26 Cyclo. of L. & P. 1545; 28 L. R. A., note on page 441; 12 L. R. A. (N. S.) 675, and 25 Id. 356. See also 18 Ruling Case Law, Sec. 241. The editors of these publications do not seem to agree as to where the weight of authority lies. If we lay aside the cases which did not turn upon this question, the number of actual decision, in