(dissenting). The principal reason assigned by the majority opinion for the reversal of the judgment relates to the admission of certain testimony upon the question of damages. It is my view that this testimony was properly admitted, and furnishes no possible ground for a reversal of the judgment. I am of the view that my learned associates have entirely overlooked the general rules applicable to joint tort-feasors. If the defendants contributed towards giving to .plaintiff a drunken husband, they are liable for the entire damages resulting therefrom. The evidence in this case clearly shows that defendants did contribute towards making the husband of plaintiff a drunkard, the result of which was to destroy his earning capacity. Damages of this character are recoverable against the bondsmen of a licensed saloon keeper under the present statute of this state. Section 2839, P°l-Code. In this class of cases the measure of damages is the diminution, or decrease in value, of the earning capacity of the husband, that produces the injury to the means of support of plaintiff. One of the ways by which this class of .damages may be established is by showing what was the prior or antecedent earning capacity of the husband. Black, Intox. Liq. 308-329; Woollen & Thornton, Intox. Liq. § 1066. Not for the purpose of showing the primary cause of- action, but for the purpose of showing the extent of the damage sustained to the means of support, antecedent circumstances may be shown. What the husband was capable of earning in any capacity prior to plaintiff’s injury is competent and proper evidence. Flynn v. Fogarty, 106 Ill. 263; Weiser v. Welch, 112 Mich. 134, 70 N. W. 438; Thomas v. Dansby, 74 Mich. 398, 41 N. W. 1088. In Thomas v. Dansby, plaintiff was permitted to go back over ten years previous to the time of the sales of the liquor charged, and show in what particular kinds of work the husband was engaged and what wages he received therefor, for the purpose of ascertaining what was his earning capacity previous to the injury — to ascertain, if you *259please, what injury has resulted from the fact that he is a drunkard, to which defendants have contributed in making him. What the husband worked at and what wages he received therefor prior to becoming addicted to* the excessive use of intoxicants, as compared with what he earned after becoming a drunkard, is about the only reliable means of actually ascertaining the injury to the means of support. In Flynn v. Fogarty, the court said that evidence of this character was highly proper.
The evidence in question was not proper for the purpose of showing that the husband had lost a job by reason of the acts of defendants, and if it had not been competent for any other purpose, the admission thereof was erroneous. But it seems to me that it was highly proper for the purpose of showing the antecedent earning capacity of plaintiff’s husband before he became a drunkard, as compared with what his earning capacity was after he became addicted to the use of intoxicating liquors, which the defendants contributed to bring about. It may have taken several years to have made plaintiff’s husband a drunkard, and many persons may have taken part in selling him the liquors that produce that condition; all those who contributed to the result may not have struck their blow at the same instant, but at diffrent instants of time contributed to1 the result of making him a drunkard. The testimony in this case shows beyond any doubt that defendants contributed to the result that produced plaintiff’s injury — that made her husband'a drunkard. Some of-the earlier decisions in cases of this character held that where plaintiff had nothing but a drunken husband to lose at the time the particular defendants sold him intoxicants was a matter to be taken into consideration as affecting the liability of such defendants; but that doctrine has been exploded by the application of the joint tort-feasor rule. Under this rule there cannot be a division of damages as between those who contributed to the finished product, each and every one is liable for the whole damages, and a plaintiff has the election of suing one or all. In this case there might have been others who sold intoxicants to plaintiff’s husband prior to the sales made by the defendants; but it is clear from1 the evidence that the defendants put on the “cap sheaves” — the defendants contributed to and finished the job of making a drunkard of plaintiff’s husband, and were liable for the entire *260damage, regardless of whether or not some others might also have contributed thereto. The making of a drunkard of plaintiff’s husband was but a single injury. Hackett v. Smelsley, 77 Ill. 109; O'Halloran v. Kingston, 16 Ill. App. 659; Werner v. Edmiston, 24 Kan. 147; Cooley on Torts, p. 510.
But it is urged that the decisions cited by Cooley sustaining the rule are based solely upon Illinois decisions, which are based upon an express statute to that effect. That is true; but the Illinois statute was nothing more than an enactment or a declaration of the previously existing common-law rule. The same rule is similarly stated in 38 Cyc. 488, and is sustained by decisions cited from many jurisdictions where no such express statute exists. The principle here involved is clearly illustrated by the case of Day v. Louisville Coal Co., 60 W. Va. 27, 53 S. E. 776, 10 L. R. A. (N. S.) 167, where a number of persons, acting independently of each other and at different times, cast slags and slops and other refuge matter into a flowing stream, thereby polluting the same, to the injury of plaintiff, in which it was held that plaintiff might sue any one or all of those contributing to such injury for the entire damages; that, while those causing the injury acted independently and at different instants of time, the effect and result of their acts existed concurrently in producing the injury of which plaintiff complained. So in the case present the defendants, along with others, acting independently and at different instants of time, cast intoxicating slags, slops, and refuse into the life stream, of plaintiff’s husband, thereby polluting the sam? with drunkenness, to plaintiff’s injury. The effect and consequential result of the acts of all those who so contributed existed concurrently along with what defendants did towards making a drunkard of plaintiff’s husband. It was but a single joint injury that was produced, and defendants are liable for the whole injury as joint tort-feasors. The great weight of judicial authority, as I read it, sustains this position, irrespective of the decisions in Illinois, which are based upon a statute of that state. Clinger v. C. & O. R. R., 128 Ky. 736, 109 S. W. 315, 33 Ky. Law Rep. 86, 15 L. R. A. (N. S.) 998.
This case must be distinguished' from cases where the husband was injured by reason of some particular intoxication, as where he was run down ¡by a train while in a state of intoxication. *261In such cases the injury resulted solely from liquors supplied to him on that occasion. In this case the plaintiff complains of a drunken condition, which, from its very nature could only result from long and continued sales to him. It is a matter of common knowledge that those who become habitual drunkards do not secure the intoxicants all from the same saloon, but that they become “rounders,” who make the rounds from “joint” to “joint.” It is not the theory of the dissenting opinion that every person who ever sold plaintiff’s husband a drink during his whole lifetime would be a joint tort-feasor with every other person who may have sold him liquor prior to the beginning of this suit. But we do mantain that, where the injury complained of is the result of general drunkenness, habitual excessive use, every one who contributes towards producing that effect is a joint tortfeasor, liable for the entire injury, and that the evidence cannot be divided up into portions tending to show that each individual joint tort-feasor damaged the plaintiff, because there is but a single injury that can not be so divided. It is the combined effect of the different sales that produced the single injury. Wherever the effect of different acts concurrently exists, all of which acts, taken together, produce a certain injury, all those who commit such act are jointly liable as joint tort-feasors. The man in his youth, when 21 years of age, might become addicted to the excessive use of intoxicating liquors, and at the age of 25 he might become a total abstainer, and so remain for 25 years, and the effect of liquor drank in his youth might wholly .disappear, and then, after he reached the age of 50, he might again become a drunkard. All those who contributed.to the effect which brought about this last drunkenness would be joint tort-feasors under the theory of the dissenting opinion, while those who sold to him prior to his becoming 25 years of age would not be joint tortfeasors, because the effect of the prior sales before he became 25 would not concurrently exist with the effect of .the sales made after he became 50 years of age.
Again, to further illustrate: A person might be the owner of a valuable well of water. A number of other persons, each acting independently of all the others, at different instants of time, might cast stones into such well, until its utility became destroyed, to the injury of the owner. Each and every one who *262so contributed to the-filling up of the well would be jointly liable for the whole injury as joint tort-feasors, although the effect of the particular stone that each cast into the well would by itself produce but little injüry. Although each stone was cast into- the well at a different time from all the others, still the effect of each act of casting a stone into- the well concurrently existed with the effect of each and every other stone so cast into such well, and all of which produced but a single injury. It could not be said that every one who, at any prior time during the existence of such well, had ever cast a stone into said well, would be a joint tortfeasor, because stones that might have been cast therein at some prior time might have been removed’ therefrom, and their effect did not contribute to- tlie injury complained of.. Under the majority opinion, evidence could only be offered as to the injury caúsed by each particular stone cast into the’well. 'The joint tortfeasor rule exists by reason of the fact that it is practically impossible to sever the damages caused by each, act from the whole of the acts which produced one injury. The law never- requires impossibilities. ’There is but one injury in such cases, and each contributor thereto is liable -for the entire damage.
The judgment appealed from should be affirmed.
POELEY, J., concurs in the dissent.