him. The defendants interposed a demurrer to the petition, and the court sustained grounds 2, 3 and 4 thereof. These grounds were as follows:

(2) "Because neither said petition nor any count thereof states facts sufficient to constitute a joint cause of action against these defendants."

(3) "Because in said petition and in each count thereof there is an improper joinder of causes of action, to-wit, a separate and distinct cause of action in favor of the plaintiff against the Armour Fertilizer (Works), and a separate and distinct cause of action in favor of the plaintiff against Morris Fertilizer Company."

(4) "Because in said petition and in each count thereof there is an improper joinder of parties, for that the Armour Fertilizer Works, if liable at all, is liable only for its own acts and for the damages resulting therefrom, and the Morris Fertilizer Company, if liable at all, is liable only for its own acts and for the damages resulting from such acts, and neither defendant is liable for the acts of its codefendant or the damages resulting from the acts of its codefendant.”

In its order sustaining these grounds of demurrer, the court provided that the plaintiff should have 10 days within which to elect which one of the defendants he would proceed against, and that in the event of a failure to make such election the case should stand dismissed. The 10 days having expired without the plaintiff complying with the order, the case stood automatically dismissed, and the plaintiff excepted.

In our opinion the ruling of the court was correct. The petition showed that the two defendants were separate and distinct corporations, and that they operated separate and distinct plants, and no concert of action, or common design, or community of interest was shown. Conceding that an actionable nuisance appeared, and that both of the defendants contributed to this nuisance, each company was liable for its proportionate part of the damage only. This precise point seems never to have been passed upon by an appellate court in Georgia, but it has been definitely settled in other States. In City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N. E. 631, 10 L. R. A. (N. S.) 806, 118 Am. St. Rep. 852, 10 Onn. Cas. 767, the Supreme Court of Ohio held that:

"Where different parties discharge sewage and filth into a stream, which intermingle and cause an actionable nuisance, they are not joint

ly liable for damages when there is no common design or concert of action, but each is liable only for his proportion of the damages."

In Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S. W. 93, the ruling of the Supreme Court of Tennessee was in substance that:

"Where two distinct corporations in proximity to each other operate their respective and separate plants for reducing and converting copper ore into metal nuggets or commercial copper, from each of which are emitted immense volumes of noxious, foul and poisonous smoke and gases, which afterwards indistinguishably mingle, commingle, and intermingle in a cloud of noxious, deadly and poisonous vapors, creating an actionable nuisance, but there is no common ownership or operation of the plants, no community of interest, no common design, purpose, concert, or joint action, a suit by an adjoining or adjacent property owner against them jointly for damages caused by their wrongful acts so separately committed is not maintainable."

See, also, to the same effect, 38 Cyc. 484, 485; Schneider v. City of Augusta, 118 Ga. 610, 45 S. E. 459; Howe v. Bradstreet Co., 135 Ga. 564, 69 S. E. 1082, Ann. Cas. 1912A, 214.

It is true that the Supreme Courts of West Virginia, Indiana, Texas, and possibly some other States, have made contrary rulings, to the effect that under such circumstances independent tortfeasors are jointly liable. We think, however, that this view is unsound and that the weight of authority is against it. At any rate, the decisions of our own Supreme Court, by which we are bound, are, in principle at least, to the effect that in such cases a joint action against independent tortfeasors will not lie.

It is unnecessary to consider the assignments or error contained in the cross-bill of exceptions.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

NOTE.-Exceptions to the Rule of Concert to Make Tortfeasors Jointly and Severally Liable.The instant case proceeds upon the theory that concert of action or common design or community of interest on the part of several tortfeasors is necessary to make all jointly and severally liable for a wrongful result. It is a little difficult to see, that the presence of a common design or of a community of interest necessarily would supply the missing link for joint liability, in the absence of concert of action, if that is necessary in any case. The having either a common design or a community of interest might be purely fortuitous and the knowledge of its

existence might be unknown to the tort feasors, or known to one and not to the other.

What seems to us the beter rule is as laid down in 21 Am. & Eng. Ency. Law, 2nd ed., p. 496, that: "Where the negligence of two or more persons, acting independently, concurrently results in injury to a third, the latter may maintain his action for the entire loss against any one or all of the negligent parties, it not being essential to the maintenance of a joint action against several for negligence that they should be engaged in a common enterprise or sustain any relations whatever between themselves."

In Sherman & Redfield on Negligence, 4th ed., § 122, it is said that: "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 independently of each other."

Cooley on Torts, p. 79, says: "If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these may be counted on as the wrongful cause, and the parties held responsible, either jointly or severally for the injury."

In Grand Trunk R. Co. v. Cummings, 106 U. S. 700, I Sup. Ct. 493, 27 L. ed. 266, it is said that: "Where separate and independent acts of negligence of two parties are the direct causes of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury; and this, although his act alone might not have caused the entire injury, and although, without fault on his part, the same damage would have resulted from the act of the other." It seems to us somewhat illogical to make the right of action depend upon inability to show the proportion of damage by either, but this case shows that, at least, sometimes there may be joint action against independ ent tortfeasors each acting separately.

Day v. Louisville Coal & C. Co., 60 W. Va. 27. 53 S. E. 776, 10 L. R. A. (N. S.) 167, presents an extreme illustration of application of the doctrine of joint and several liability of independent tortfeasors. Thus it was said: "In defense the defendant showed that various other coal and coke works, separate and distinct from that of the defendant, carried on by other operators, threw their refuse into the same creek and river, and that the injury to the plaintiff's land came as well from the acts of others as from the defendant, and that plaintiffs cannot maintain their action against the defendant and make it responsible for damage which came from the acts of others. It contends that it is not liable further than the damage caused by its act. There are some authorities that support this proposition, but the authorities against it very decidedly preponderate, and they harmonize with right reason and the established law of centuries. This damage comes from tort, not contract, and it is a rule of law as old as the hills that in a tort all participating or contributing in the wrong, working the injury, are liable and any single one is liable. One can be sued, or more can be sued."

In Allison v. Hobbs, 96 Me. 26, 51 Atl. 245, it was ruled that where persons acting separately and independently caused a separate and distinct injury, in causing a separate and distinct arrest of the same person, they could not be sued jointly, but, arguendo, it was said that if

their several independent acts directly contributed to produce a single injury, each being sufficient to cause the whole and it is impossible to distinguish the part caused by each, they may be sued as joint tortfeasors." This it is seen is different from a case where only part of the damages is caused by each one; but we do not see that this ought to make any difference in the principle involved. There is no more concert in one case than in the other.

In West Muncie Strawboard Co. v. Slack, 164 Ind. 21, 72 N. E. 879, it was ruled that even if it may be conceded to be true that the principle declared in the instant case be true there "a distinction, however, is recognized between such acts which are wrongful only because injurious to individual rights and those which combine and constitute a public nuisance. In the former class of cases each separate wrongdoer is chargeable with his own acts alone, in the absence of a joint purpose among participants; in the latter, each may be answerable in a joint and several action, not only for what he himself does, but likewise for the acts of those, who with him violate public as well as private rights." As supporting this view are cited Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911, 21 Am. St. Rep. 676; Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603. These show distinctions as to the general rule and we would doubt very greatly, even if the general rule were good law, that they are soundly drawn.

Notwithstanding the statement in Day v. Louisville Coal, etc., Co., supra, that a preponderance of cases supports its conclusion, this seems not true, but, on the contrary, they largely preponderate the other way.

The proposition that each of independent tortfeasors is liable only for his proportion of injury has been ruled in England and decision shows that it has been vigorously combatted right along.

While the great weight of authority sustains the instant case, we greatly doubt its correctness. and it certainly seems opposed to the text in authors above cited. A valuable note on the subject is found in 118 Am. St. Rep., beginning at page 868. C.

ITEMS OF PROFESSIONAL

INTEREST.

REPORT OF THE MEETING OF THE MISSOURI BAR ASSOCIATION.

The thirty-fourth annual meeting of the Missouri Bar Association convened in the city of St. Louis on September 26th, 1916, and concluded its labors on the 28th of the same month.

We use the term "labors" advisedly, since our experience does not recall a session where the members kept themselves so assiduously to the self-imposed task of lawmaking as did the three hundred delegates attending this meeting.

The first real clash of arms occurred over a motion to supersede the annual report by a

bar association quarterly edited by the executive committee. After serious misgivings had been expressed with respect to the financial difficulties of such an undertaking and some opposition to the abandonment of the annual report, the whole matter was committed to the executive committee with power to act.

But for real trench warfare in days of peace we never witnessed anything more exciting than the sharp conflict that developed over the adoption of the recommendations for reforming the rules of pleading and practice, proposed by a Special Committee on Remedial Procedure, appointed at a previous meeting of the association, and of which Judge David H. Harris, of Fulton, was chairman.

In order to show the prodigious labors of Judge Harris' efficient committee, as well as the almost impossible task it "put up" to the association, it should be stated that the report of this committee covered 100 pages of ordinary law book text. The recommendations proposed eight bills, amending or completely changing by substitution 154 sections of the Missouri Code of Procedure.

The first shot fired at the proposed recommendations was a motion to substitute for the committee's suggestions a bill authorizing the Supreme Court of Missouri to make rules of pleading and practice, with power to abrogate or amend the present statutory provisions of the code and to adopt such new rules from time to time as to such court might think proper.

The committee was hardly prepared for this flank attack and great progress was made by the opposition before the committee finally rallied its forces and regained the lost ground by the argument that a half loaf was better than none and that the arduous labors of the committee should not be wasted by the proposal of a scheme so impossible of attainment at the present time. Professor Manley O. Hudson, of the University of Missouri, shelled the enemy's position with arguments showing the utter futility of haphazard tinkering with statutory codes of procedure, the inherent weakness of all statutory rules governing procedure, and the elasticity of court-made rules. He closed with the statement that five States had already adopted the English plan of court-made rules of procedure and that the way of progress lay along that line. But the committee had organized its defenses too strongly and pleaded successfully for the adoption of its recommendations, leaving for the future to develop a sentiment for that

system of court-made rules, which every lawyer knew to be the most desirable.

The convention then proceeded to use up two good days in considering these 154 sections, and at the close of the debate there was probably not one delegate who was not ready to admit that making or amending rules of procedure was no easy task, even for lawyers, and could hardly be done in two days of even the most painstaking study. Former Congressman Robert Lamar of Houston, and Hon. Fred. W. Lehmann of St. Louis succeeded in having stricken out or amended certain sections of the proposed recommendations, but both gentlemen finally declared that the Supreme Court and not the legislature should determine questions so difficult and technical in their nature.

The third day of the convention was devoted to the hearing of prepared papers and addresses. Hon. F. P. Divelbiss, of Richmond, spoke on "Some Needed Changes in the Rules of Evidence," wherein he ridiculed the idea of making dying declarations admissible in homicide cases, but denying their admissibility in other cases of much less importance. Dean Eldon R. James, of the University of Missouri, Law Department, spoke on "The Changing Laws."

Our good friend, Mr. Herbert Harley, of Chicago, secretary of the American Judicature Society, gave a learned resume of modern experiments of "Commercial Arbitration." His address showed an intimate acquaintance with the rapid development of this idea in England, and his paper is therefore a very valuable contribution to the science and literature of the law on this subject.

Hon. Henry D. Clayton, United States District Judge, Alabama, spoke in favor of "Uniformity of Procedure at Law in Federal Courts." He explained the bill proposed by the Committee on Uniform Procedure of the American Bar Association, which gives to the Supreme Court authority to make rules governing pleading and practice at law in the federal courts. He showed the utter impossibility of following the ever changing State rules and extolled the advantages of a uniform code to be learned once for all and to be in force everywhere in federal courts from Maine to Cali fornia. He then "dipt into the future" and saw the possibility of State legislatures abandoning the rigid statutory codes and giving to their highest tribunals the same authority now sought of Congress for the Supreme Court of the United States; and still further into the future, but not so far as to be impossible of realization in the lifetime of many of the

younger members of the profession, he saw the possibility of every supreme tribunal so modifying its own rules of procedure so as to bring them into substantial uniformity with the federal rules, thus realizing the wildest dreams of the lawyer that some day he could learn one system of procedure that would enable him to practice law anywhere in the country without fear of local traps and pitfalls, a system elastic, reasonable and simple.

The officers elected for the ensuing year were as follows: Hon. James H. Harkless, of Kansas City, President; Mr. George H. Daniel, of Springfield, Secretary, and Mr. A. Stanford Lyon, of Kansas City, Treasurer.

A. H. R.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 111.

Auctioneer; Fees; Relation to Client-Lawyer's receipt from auctioneer conducting partition sale, of part of his commission-disapproved.

A, an attorney, represents an estate, a portion of which is real estate. In partition proceedings an order of sale is made, and A, representing substantially all parties and particularly the plaintff in the partition proceedings, puts the matter into the hands of an auctioneer. The property is sold at a satisfactory price, and the auctioneer makes the usual charge. After the transaction is completed, the auctioneer, who has previously said nothing about the matter, asks A to accept a check for one-half of his commission, stating that he does so in appreciation of A's bringing the business to him.

(a) Does A's duty to his clients prevent him from accepting the check?

(b) If so, would the objection be removed if A inquired of his clients whether they had any objection, and they answered that they had not? (c) If he has no duty to his clients, is there any other consideration which should prevent him from accepting?

ANSWER No. 111.

In the opinion of the committee, the lawyer's duty prevents him from accepting check without the knowledge and consent of his clients;

QUESTION No. 112.

Fees; Relation to Client; Relation to Third Person-Charge by attorney for estate, as condition for securing extension of existing mortgage held by estate as investment; its proper basis and limitations—participation by such attorney in brokerage upon policies of insurance upon the mortgaged property; its limitationsinsistence by such attorney upon such brokerage as condition of permitting mortgagor to select insurer-disapproved.

(a) An attorney represents an estate which is the mortgagee; the mortgage expires; there is no question raised as to the sufficiency of the real estate security but the attorney for the estate insists on a fee of $200 for his services as a condition for the securing of an extension of the mortgage. Is there anything improper or unethical under such circumstances in the charge of the attorney?

(b) The attorney insists that the insurance policies be taken out by him on behalf of the mortgagee and rejects policies taken out by the mortgagor. The attorney seeks to secure the brokerage on the insurance policies or a portion therenf Is the attorney justified in this prac tice if there is no provision in the mortgage giving the mortgagee the right to take out the insurance? If there is such a provision, is it ethical for the attorney to participate or share in the commission or brokerage secured through the issuance of such insurance policies? Would it vary the situation if the attorney had an insurance brokerage business connected with his office and conducted under a different name? Under any circumstances, would the attorney be justified in offering to permit the mortgagor to take out the insurance if the attorney received a part of the brokerage or commission, and would not such practice be unethical?

ANSWER No. 112.

In the opinion of the committee:

(a) It is not proper for the attorney to demand or receive any compensation for inducing his client to grant an extension, nor as a condition of securing an extension. But there is no impropriety in the attorney demanding and receiving as compensation for his services actually rendered in the transaction a reasonable amount to be paid by the mortgagor, commensurate with the service, and depending upon the circumstances of the particular case.

(b) Questions of statute law which may be involved, are not considered by the committee. Assuming that the course suggested involves no violation of statute, the committee is of the