state and federal courts, may be found to be greater against than in favor of the maintenance of joint action.

In view of the conflict of authority upon the question in hand, it is necessary to apply to it the rule of reason. The grounds upon which the cases that deny the right to maintain a joint action rest this opinion may be classified under four heads.

(1) It is said that although the servant and his master are each liable for one and the same act of negligence, one cause of action does not exist against them, for the reason that the master is not in fact negligent; that it is not accurate or correct to say that the negligence of the servant is the negligence of the master, the accurate statement being that the law, on grounds of public policy, imposes upon the master liability for it to the same extent as if it were his own negligence, but that it is not his negligence even in legal intendment; and hence, as the grounds upon which they are held liable are different, it is improper to sustain one action against them jointly. It seems to us a refinement to say that because the legal liability of a master, who morally may be without fault, results from the fact that the law holds him responsible for his servant's negligence, the cause of action against him is always different from what it would have been if the neglect to observe care had been his own; and that it is not accurate to say that in no case is the servant's failure to exercise due care by legal intendment regarded and treated as the negligence of the master. Negligence is a breach of the legal duty to observe due care in what one is doing. When the owner of an automobile sends it out, in charge of his servant, for the purpose of having it traverse public, streets and highways in and for the prosecution of his business, he himself causes that automobile to be taken to and put in use at a place where its use involves danger from it to other persons. The driving of it upon the streets is in law his act, under the principe qui facit per alium, facit per se, because he has employed the servant to do that very thing. He is thus himself the cause of a situation which exposes other users of the highway to the dangers that are necessarily incident to the operation thereon of such a machine, and from this it appears to us to follow that there rests upon him a duty to have the machine

operated in such a careful manner as will not expose others to dangers that are not necessarily incident to its proper use, and that this a primary duty resting upon him by reason of the fact that he is at the time in control of and engaged in operating the machine through his own servant. He may delegate or entrust the performance of his duty of taking care to the servant who drives the machine, and then the servant, while in the observance of due care, will be performing the obligation which thus rests upon the master, as well as the like obligation which rests upon himself personally as the actual driver, while, if the servant omits to use such care, there occurs a breach of primary duty on the part of each. As applied to negligence in such a case the rule of respondeat superior is not a mere arbitrary rule of law; it has a substantial basis in the idea that he who undertakes to do a certain act by and through his servant, thereby assumes the duty of having it done with due regard for the safety of others, the very same duty that he would assume if undertaking to perform it personally; and if, instead of accompanying his servant and seeing personally to the performance of this duty, he trusts its performance wholly to the servant, the latter's neglect to exercise due care constitutes a failure of performance of the master's duty. It seems to us that in such a case as the present one the cause of action against the master-neglect to perform the duty of due care-is the same whether the carelessness was that of the master personally or that of his servant to whom he had entrusted the performance for him of his duty, and hence that this cause of action is the same as the cause of action against the personally negligent servant.

Upon the question of the joinder as a defendant of one whose liability for a tort is created by a rule of law, with the defendant who personally committed it, we are not without an analogy in this state Prior to 1848, and while the Act of April 11, 1848, P. L. 536, was in force, a husband was liable for his wife's torts. For torts committed by her out of his presence, and without his direction, she was herself liable because they were her own torts, and he was also liable because he was her husband -not for any personal fault of his own, but simply because the law, as a matter of policy, imposed on him a

liability for her acts. His situation, with respect to his liability for torts which created also a liability upon the part of his wife, was thus closely analogous to the liability of a master for the negligent tort of his servant. And yet it was never considered in Pennsylvania that there was any difficulty, arising out of the fact that the husband's liability and that of the wife for the same tortious act rested upon these different grounds, about the enforcement of them in one and the same action. An instance of such an action is found in Quick v. Miller, 103 Pa., 67. It may be said that previous to that act of June 3, 1887, P. L. 332, the joinder of the husband with the wife was necessary in any event, because a married woman could not then be sued alone. But if it had been thought that, while they were both liable for the same tortious act, the causes of action against them were different, so as to render incongruous the joinder of two such liabilities in the same action, such incongruity would have been avoided by bringing one action against them jointly to recover on the cause of action against the wife, and a judgment de bonis uxoris, (See Baker v. Lukens, 35 Pa., 146) and a separate action to recover a judgment de bonis propriis against the husband upon his liability.

(2) It is said that evidence is required to make out a case against the master, which is not requisite as against and does not affect the servant. This is true. As to the servant, it is sufficient to show simply that he did the negligent act which caused the injury, while as to the master it is necessary to show further that the doer of the act was his servant and did it in the course of his employment as such. But it is likewise true that if the master has directed the servant to do an act which in itself constitutes negligence, or to do something in a particular manner which amounts to negligence, and the servant, in the master's absence, carries out such instruction, an exactly similar difference, exists with respect to the evidence that is necessary to establish their respective liabilities; and yet in such a case all the authorities concede that an action against them jointly is maintainable. This reason seems to lack substantiality.

(3) It is said that the measure of damages recoverable against the servant and against the master may be different; the negligence of the servant may be so gross

as to make him liable for more than the mere compensation which would be the limit of the liability, under the rule of respondeat superior, of a master who was not personally at fault. We can see no difficulty or embarrassment, arising from this point, under the principles of Pennsylvania law; for the rule here is that when defendants, jointly sued and all liable for exemplary damages, are not equally blameworthy, such damages are to be assessed according to the acts of the most innocent defendant, and that if any of the joint defendants be not liable for exemplary damages (though one or more others may be,) no such damages can be included in the verdict: McCarthy v. DeArmit, 99 Pa., 63, 72. The result, then, of joining in one action a defendant who has so conducted himself as to be liable for exemplary damages, with a defendant who is not so liable, is simply that the plaintiff thereby restricts himself to a claim for compensatory damages merely against both. We may add that in this case no proof was offered to establish a liability of Mrs. Kalcic for more than compensation, and the jury were not asked to give anything more, and such compensation would have been the measure in a separate action against Mrs. Kalcic.

(4) It is said that where the master is compelled to pay damages for a negligent act of his servant he has a right of action over, against the servant, to recover indemnification, and if they are jointly sued, and a judgment rendered against them as joint tort feasors, such judgment would be an obstacle in the way of the master's recovery over from the servant. If the declaration in the case charges both defendants withactual participation in the negligence, the judgment doubtless would have this result because it would import an adjudication that the master was an actual joint tort feasor, and might prevent him from showing the contrary in his suit against his servant. But where, as in the present case, the statement of claim does not charge the master with any personal act of negligence, but distinctly charges that the actual negligence was that of the servant alone, and invokes, as the ground of the master's liability, the rule of respondeat superior, a joint judgment against the master and servant would, so far as we can see, import no adjudication of anything that would be an obstacle in

the way of his suing the servant after having been compelled to pay the judgment, upon the ground that liability for the damages so recovered and paid was imposed upon him by his servant's default in the performance of a duty delegated to the latter by the master. In the present instance, the master and servant are husband and wife, and no suit for reinbursement can be maintained by the former against the latter, at least while the mar riage relation exists but as it might be that this relation would have the effect of merely suspending the right to sue until its dissolution (Grace's Estate, 158 Pa., 521), we have considered the matter upon the assumption that the right to indemnification would arise.

None of the objections stated in the decision which we have examined having, in our opinion, such substantiality as to exhibit, at least under the legal principles and the system of practice and pleading which obtain in Pennsylvania, any incongruity in the entertaining, upon facts and circumstances such as exist in the present case, a joint action against the master and servant, or showing that any substantive right of either defendant would be prejudiced thereby, or any practical difficulty or confusion would arise therefrom, why should such action not be entertained? The master and servant are in this case equally liable for the negligent act which the servant committed, and the extent of their liability is identical-to render compensation for the actual injuries caused by such negligence. Why then, simply for the reason that this negligence, without having been participated in by any act of the master, is imputed to him by the law, with the same effect with respect to his liability to the injured party as if he had taken actual part in it, should the plaintiff not be permitted to sue the parties, both of whom are liable to him, in a joint action? It is indeed a question whether he can in separate actions recover judgments against each. In Betcher v. McChesney, 255 Pa., 394, a person injured by the negligent act of a servant, after recovering against the servant a judgment which remained unsatisfied, sued the master, and Mr. Justice Stewart remarked (page 396) that this was "but the splitting up of a single cause of action which the law will not allow," and again (pp. 398-9) that it is a familiar principle that a single tort can be