Opinion of the Court. the direct cause of a single injury to a third person, it is impossible to determine in what proportion each contributes to the injury. Either is responsible for the whole injury, and this though his act, alone, might not have caused an injury, and though, without fault on his part, the same damages would have resulted from the act of the other." (See Slater v. Mersereau, 64 N. Y. 128.) In Wharton on Negligence, sec. 788, the rule is stated to be, that "if two or more persons are jointly concerned in a particular act they may be sued jointly." And so, if several persons are jointly bound to perform a duty, they are jointly and severally liable for omitting to perform or for performing it negligently. All persons who co-operate in an act directly causing injury are jointly liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independent of each other. (1 Shearman & Redfield on Negligence, sec. 122.) In Cuddy v. Horn, 46 Mich. 596, it was held that an act wrongfully done by the joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable; and it was held, that if a passenger on one vessel is injured by its collision with another in consequence of the negligence of the officers of both, he has a right of action against them jointly. (See, also, Stone v. Dickinson, 5 Allen, 31; Cooper v. E. T. Co. 75 N. Y. 116; 2 Thompson on Negligence, 1088.) In Wabash, St. Louis and Pacific Ry. Co. v. Shacklet, 105 Ill. 364, which was a case where a passenger upon one train of cars was killed by the collision with the train of another company using the same track, through the mutual negligence of the servants of the two companies, we said: "We are of opinion that public interests will be best subserved by adhering strictly to the long and well established principle, that one who has received an actionable injury at the hands of two or more wrongdoers, all, however numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff, in such case, has his election to sue all jointly, or he may Opinion of the Court. bring his separate action against each or any one of the wrongdoers." There can, in such case, be no apportionment of damages as between the several parties whose negligent acts and conduct have contributed to the injury. Nor can one of the wrongdoers compel contribution from the other. There can be but one recovery for the damages sustained, and this, as we have seen, may be several as against each wrongdoer whose act or negligent conduct has contributed to produce the injurious result; and where the negligence of two or more persons directly concurs to produce the injury, although one may have undertaken one part and another another part, and the negligence occurs in the performance of each of the several parts of the work which directly contributes to produce the injury, all will be jointly liable. The test seems to be, whether or not the negligence of each directly contributed in producing the injurious result. Here, the brewing company intended that its defective support should be used as it was used, and it having express notice of the insufficiency thereof, it became. responsible to any one injured, while exercising due care, from the use to which it was thus applied by its direction and supervision; and the ice machine company, with knowledge of its insufficiency, went on and placed the tank thereon, and thereby became responsible for injuries to any of its servants it might send to work upon the tank, without giving them notice of the danger to which they were exposed. Here, the negligence of each of these defendants directly concurred in producing the death of Keifer. It is urged that the court erred in the admission of evidence. The witnesses Marion and Gaines testified at the trial, that if the swivel in the hog chain had not been defective the truss would have supported from sixty to one hundred thousand pounds. On cross-examination, plaintiff showed by them that they testified at the coroner's inquest upon the body of Keifer, and having identified the transcript of their testimony, as Opinion of the Court. taken down by the coroner, and signed by them, they were asked if they did not state in that examination that the hog chain, if perfect, would have sustained about thirty tons, to which they answered they did not recollect. Plaintiff, in rebuttal, introduced in evidence that portion of the witnesses' testimony to which their attention had been called, which showed they did so testify. Their deposition before the coroner had been read to and signed by these witnesses, and on cross-examination their attention had been particularly directed thereto. This evidence was offered by way of impeachment, and was entirely competent. The mode of examination seems to have conformed to the rule in reference to examinations in respect of written instruments. 1 Greenleaf on Evidence, 452-465. It is also insisted by the defendant the brewing company, that the statements and declarations of Dennerty, the superintendent of the ice machine company, were improperly admitted in evidence. The testimony to which this objection applies is that of the witness Stith, that he had heard Dennerty tell the man who built the tank and brought it to the brewery, to put it where the brewing company told him to put it, and to Dennerty's own testimony, that he told Heim. that the supports were not strong enough to sustain the weight of the tank. In respect of the latter it is clearly competent against both defendants, as tending to show that each, prior to the erection of the tank, had notice of the insufficiency of the truss to sustain the weight to which it was to be subjected. The testimony of Stith was clearly competent as against the ice machine company. Dennerty was its superintendent in charge of the work, and his direction was the direction of his company. If incompetent as against the brewing company, the rule would be, that it must be admitted against the defendant in respect of whom it is competent, and its use and application limited by proper instructions. If the testimony was proper for any purpose, its admission was not error. The Opinion of the Court. plaintiff here sues in a representative capacity, and the defendants, if natural persons, would have been incompetent to testify as witnesses in the cause. The brewing company was a corporation, and Heim, being its president and a stockholder therein, was interested, and therefore incompetent to testify generally on behalf of the corporation, when called adversely to the plaintiff. At common law, a stockholder, being interested in the event of the litigation, was not allowed to testify generally in favor of the corporation. Thrasher v. Pike County Railroad Co. 25 Ill. 393. It is urged that the court erred in refusing to allow the defendant the brewing company to prove its directions to its foreman to build a sufficient truss. This is not error of which that company can complain. Its foreman did afterwards testify, without objection, to the directions given him. But if this was not so, the master is liable for the acts of his servant within the scope of his employment. The act of the servant in providing the structure, was, in law, that of his employer, and the servant's failure to obey instructions will not exonerate the master. Chicago and Northwestern Ry. Co. v. Swett, Admr. 45 Ill. 197; Wood on Master and Servant, 860; Beach on Contributory Negligence, sec. 130; Wharton on Negligence, sec. 232, note; Patterson on Railway Accidents, 329, 330. We have carefully considered the several points made by counsel, and are of opinion that there is in this record no error requiring a reversal of the judgment of the Appellate Court, and it will accordingly be affirmed. Judgment affirmed. Syllabus. 134 496 150 63 134 498 158 489 GEORGE HUNT, Attorney General, ex rel. City of Streator, v. JESSIE S. EVANS et al. Filed at Ottawa October 31, 1890. 1. WILLS-recitals in a will—misrecital, as to other parts of the will, and as to instruments outside of the will. Where a will recites that the testator has devised something in another part of the will when in fact he has not done so, such recital will be construed to show a purpose and intention of the testator to devise by the will, and the courts will carry out such intention, and thus give the erroneous recital the effect of a devise by implication.. 2. But where the recital in the will is to the effect that the testator has, by some instrument other than the will, given to a certain person named in the recital, property, when in fact he has not done so, such erroneous recital will not disclose a purpose and intent to give by the will, and resort must be had to the other instrument, and not to the will. 3. A testator, after making certain devises, recited in his will that he had conveyed in trust to W. and P., as trustees, certain property, described in the trust deed, for the purpose and upon the trusts mentioned in such deed of trust, reserving the rents, etc., during his life, and upon his death the residue to be vested in a board of directors with intent to establish, under the statute, a public library for the use of the inhabitants of the city of S., upon complying with the directions and trusts named in said deed of trust. The will and deed of trust were both prepared, but the will only was executed: Held, that the recital in the will in respect of the creation of a trust could not be construed as a devise of anything, or as a declaration of a trust for the benefit of a public library. 4. SAME-disputing recital in will-devisees and heirs not estopped. The devisees and heirs of a testator are not estopped by the recitals in his will that he had conveyed certain property to trustees, in trust for a certain purpose, from denying the execution of any such deed. The rule in Gorham v. Dodge, 122 Ill. 528, has no application to such a case. 5. SAME-separate instrument as part of a will. A will and a conveyance in trust were prepared in blank at the same time, and the will recited the fact of the execution of the deed, in trust, etc. The will alone was executed: Held, that the blank deed of trust was not made a part of the will by the recital in the latter. |