I do not think that it is at all accurate, or quite fair to the counsel for the petitioner, to declare, as is done in the order dismissing the petition, that "this petition is based absolutely upon testimony from the defendant's viewpoint." I understand the position of the defendant to be this: The facts alleged in the compliant disclose a case of joint and concurrent tort; the plaintiff had the option of suing the tort-feasors separately or jointly, he exercised the option of suing them jointly; he can recover only upon the proof of joint liability; the verdict of the jury having exonerated one of the defendants, the plaintiff's cause of action necessarily has failed, and the judgment against the company alone should be reversed. I do not consider that this at all raises a question other than one of law. It is not a "position based absolutely upon testimony from the defendant's viewpoint." The reply in the main opinion to the position of the defendant as above outlined is:
"Again, in a suit for a joint and concurrent tort, proof of the commission of the tort by one of the defendants only is sufficient to justify a verdict against that defendant."
This is an absolutely correct statement as applied to an action against either of the joint tort-feasors, separately; but where the action is against both as upon a joint liability, *Page 153 upon which theory alone could it be maintained, the plaintiff must lie upon the bed which he has made, and cannot recover except upon proof of a joint tort and a jointliability. Assuming then, as to which there can be no doubt, that the plaintiff, upon the facts stated in his compliant, was free to sue either of the defendants, separately, upon his or its several liability, or to sue them jointly, when he adopts the latter option, he abandons the idea of several liability, and relies solely upon proof of a joint liability.
The case of Pendleton v. Railroad Co., 133 S.C. 326;131 S.E., 265, presents an exceedingly clear and instructive discussion of the subject, in an opinion by Justice Marion, with his accustomed logic and exquisite diction. In that case the plaintiff sued the street car company and one L.E. Dicks, alleging separate and independent acts against each of the defendants; against the company it was alleged that the plaintiff had been discharged from the car in which he was riding, at a dangerous place in the middle of a block; against the defendant Dick, that he negligently ran an automobile over him; that the injury sustained by him was due to the combined negligence of the two defendants. The appeal was from an order refusing to require the plaintiff to elect as between the separate and several acts of the defendants and their joint negligence. The order appealed from was affirmed for the reason that the plaintiff had elected by the form of his action to rely upon a joint cause of action and the election was unnecessary. The opinion declares:
"Since the liability of such tort-feasors is both joint and several, it is well settled that the law gives to the injured party the option of suing two or more of the parties liable jointly; that is, as defendants in one action, or of suing each upon his several liability in a separate action. And since the injured party's right to join two or more alleged tort-feasors in one action may be sustained only upon the theory of a joint liability, when a plaintiff joins two or more *Page 154 alleged wrongdoers as parties defendant in one action, such joinder in itself necessarily implies that he has elected to treat his injury as a joint tort, and to recover upon thetheory of joint liability."
And further:
"The plaintiff expressly alleges that the separate acts of negligence attributed to each of the defendants concurred and co-operated to produce the result — the injury complained of. Having elected to (sue) the two defendants in one action, and having alleged that the acts of each concurred in causing his injury — the only theory upon which he was entitled to sue both in one action — he must recover, if atall, upon the theory of joint liability, and not upon that of separate causes of action predicated upon the several liability of the two defendants."
I do not think that any other authority than this recent decision is needed, though I may say that an examination of the authorities elsewhere fully sustains the conclusions announced.
"Where a joint tort is alleged, there can be no recovery without proof of a wrongful act by both defendants." Gilfillanv. King, 239 Pa., 395; 86 A., 925.
"A failure to prove the joint liability of" persons charged as joint tort-feasors, is "a failure to prove the cause of action alleged." Livesay v. Bank, 36 Colo., 526;86 P., 106; 6 L.R.A. (N.S.), 598; 118 Am. St. Rep., 120.
I cannot understand how it can be said that the complaint alleged negligence generally against the railroad company, when it so distinctly alleged a joint and concurrent act of negligence against the company and the engineer, and specifies the particular.
The order refusing the petition further states:
"There was plenty of testimony to show a reasonable probability of negligence on the part of some one on the engine. The defendant Carter testified that he was not negligent. The jury evidently agreed with his contention *Page 155 and yet found that some one else had allowed the steam to negligently escape."
I have not been able to discover this abundance of evidenceor even a trace of it. The verdict fixes the source of the emission of steam as the safety valve, for it finds that the steam was beyond the engineer's control, and the safety valve was the only appliance connected with the escape of steam that was not within his control. If it came from the safety valve, we must take cognizance of the fact that that valve is placed there beyond the control of any employee, to "pop off" automatically, so that neither the engineer nor the fireman had the power, and it was intended that they should not have it, to discharge steam therefrom. If not from the safety valve, whence did it come? There is nothing in the record to give answer to this question. The case of Green v. Railroad Co., 72 S.C. 398; 52 S.E., Ann Cas., 165, declares:
"The cause of the accident is purely conjectural. There is no more reason to suppose it was due to a defect in the machine than to an unconscious error of the plaintiff in its operation, or to some other undiscoverable cause for which neither party was responsible. `A servant cannot recover where it is merely a matter of conjecture, surmise, speculation, or superstition, whether the injury was or was not due to the negligence of the master."
The fact that the plaintiff in this case was not a servant in no wise changes the principal. It is the baldest conjecture that the fireman or some one else on the engine allowed the steam to escape. The fireman, certainly when the engineer was at his post, as the complaint alleges, had nothing to do with the engine, and could not as a physical fact have made the steam escape if he had desired to do so. *Page 156