Dissenting Opinion by
Judge Clarke.Being unable to agree with the opinion of the majority of the court in this action, and believing that it. authorizes an unwarranted innovation in our practice, I feel impelled to state briefly my reasons for dissenting.
Recognizing the' code inhibition against joining in one action two defendants, not jointly liable for a tort, ■ with a prayer for relief alternately against the one or the other, the opinion nevertheless permits that very thing to be done by the artless subterfuge of pleading a joint liability that does not exist and then proving that only one or . the other is liable. It appears to me anomalous that one may be permitted to employ a court to . accomplish by indirection what he is forbidden to do directly, and it would seem axiomatic that if a demurrer. would have been sustained to the petition, if it had truly stated the facts as developed by the evidence, a motion for a peremptory instruction,' which is, as stated in the. opinion, a demurrer to the evidence, must necessarily,, and for the same reason, be sustained. How facts, if . stated in the pleadings can be insufficient to support an action, but sufficient if developed by the evidence, I am utterly unable to comprehend. .And a non-suit would have resulted from a statement of the facts in the petition as they were developed by the evidence, because the statement that one or the other of two defendants is liable does not state a cause of action against either. Section 113, 'Civil Code; Brown v. I. C. R. Co., 100 Ky. 525. And there would have been- no occasion for a motion to elect, as assumed in' the opinion, because the' petition so drawn would not have been a misjoinder, affording reason for election which might be waived, but would have stated no cause of action whatever against any one. For the very same reason non-suit, and not " election, must result when the evidence discloses the fact that defendants were not joint tort feasors, but that only one or the other and not which one was separately and independently liable, and that such is the law, so far ‘ as I am informed, has been uniformly held by this court' in a long line Of cases, of which the following cited in the opinion are' fair'examples: Hughes v. Cincinnati, &c. Ry. Co., 91 Ky. 526; Louisville Gas Co. v. Kaufman, Straus & Co., 105 Ky. 131; Thomas’ Admr. v. Eminence *50Distillery Co., 151 Ky. 29; L. & N. R. Co. v. Long, 139 Ky. 299; and C. & O. Ry. Co. v. Atkins, 167 Ky. 329.
The majority opinion is based solely upon an assumed failure of defendants to object to being sued jointly for their confessed several liabilities, but it seems to me they did object both by their separate answers denying any joint liability and thereafter, in the proper and only authorized way, by the motion for a peremptory, and that a motion to elect was not proper both for the reason I have heretofore stated and because the code provides such a motion shall be 'made before answer is filed, clearly showing it is directed at the pleadings and not the evidence.
But even if such a motion could be employed against evidence showing a misjoinder of actions that had been concealed in the pleadings, which I doubt, and defendants had made it and the court had required plaintiff to-elect and she had elected to proceed against the gas company alone, the situation would have remained unaltered, since plaintiff’s proof showed only her injury from a tort committed by the gas company or another,, but not which, under which circumstances she was not entitled to recover under the line of authorities, examples of which are referred to above.
The only authorities cited in support of the practice,, approved by this court for the first time in this case so-far as I can find, are, in my judgment, not applicable.
In those actions a servant alleged to have committed the tort was joined with the master responsible for the servant’s acts, where both were clearly jointly liable if the injury resulted from the negligence of the servant,, alone; that is, the complainant may by pleadings and proof join with the master as defendants such servants as participated in the negligent act complained of. In other words, one or both jointly were liable for the same negligent act, where as in the case at bar only one or the other of two independent parties is liable, but not both by any possibility, for separate and independent acts performed on different dates. I am unable to see in the cases cited such analogy as warrants a disregard of the plain legislative regulation of procedure found in section 113 of the code.
Plaintiff alleged a joint cause of action against both, defendants, but this she did not prove, nor did she prove a cause of action against either because she proved that neither, rather than the other, was liable, and only that *51■One or the other but not which was liable. In other words, she got into court by falsely alleging a joint cause of action, and is allowed to remain in court after she has disproved the alleged or any cause of action, upon the ¿round that different parts of her evidence would convict one or the other defendant of the negligence complained of, which, in my judgment, necessarily ignores or overrules the oft repeáted. rule of this court, that where the evidence is equally consistent with the existence or non-existence of negligence upon the part of a defendant, he is entitled to a directed verdict.
Nor does this rule or my views conflict in any way with the right of a plaintiff or a defendant to contradict his witness who unexpectedly gives evidence against his, and in favor of his adversary’s theory of the case, for it is the province of the jury to decide the merits upon the •evidence of conflicting theories advanced by the respective parties, but the jury ought not to be called upon to decide which of two defendants, one only of whom is severally liable, the plaintiff ought to have sued as was done here; and to avoid such a necessity, section 113 of the code prohibits such a double cause of action being pleaded while the rule last above mentioned has heretofore prevented its being proven.
To me, plaintiff’s two theories, equally supported and •only one of which could be true, seem mutually destructive of each other. She proved by one set of witnesses that .the gas company alone, by its agents’ acts on Tuesday, was guilty of the damaging negligence, and by another set of witnesses, that Fleck by acts of his agents on Monday, alone was the guilty party; equally and impartially proving that the gas company was guilty of negligence and that it was not guilty; that Fleck was negligent and was not negligent. In other words, she marched Tip the hill, turned around and marched down again, which seemingly ought to have left her about where she ¡started.
Judge Thomas concurs in the views herein expressed.