band from his liability to support his wife' in violation of the Domestic Relations Law? An agreement by the husband to pay such a sum for the support of his wife as is satisfactory to her cannot be said to have that effect. . . . The clause in question was not intended to change, but to preserve, the law as it previously existed, and to prevent the broad powers committed to the wife by the forepart of the section, to make any contract 'with any person, including her husband,' from opening the door so wide that she could release her husband from his liability without any adequate provision for her support being made by him. She does not relieve him of his obligation when she accepts his promise to perform it, and he does not forsake his duty when he agrees to discharge it to her satisfaction. She is the best judge of what she needs for her support, and the amount may be fixed and settled by an agreement made after actual separation, without violating any principle of law or any statute now in existence." A statute expressly permitting married persons to release property rights, upon certain conditions, was con sidered to have changed the former public policy, which had declared all separation agreements to be void, and apparently to authorize a wife's release of her right to support in a proper case, in Archbell v. Archbell (1912) 158 N. C. 408, 74 S. E. 327, Ann. Cas. 1913D, 261. In overruling the contention that a (Colorado) statute indicated a public policy adverse to the separation agreement by which the wife released all her rights, where it provided that a husband might not by will deprive his wife of more than one half of his property, unless she should accept the condition of the will after his death, in Daniels v. Benedict (1889) 38 C. C. A. 592, 97 Fed. 367, the court said that it could not perceive any such indication, since these restrictions were expressly limited to dispositions by will. In Stebbins v. Morris (1897) 19 Mont. 115, 47 Pac. 642, it was said that a statute (enacted after the execution of the particular separation agreement) expressly allowed an agreement for an immediate separation, and that it declared the mutual consent of the husband and wife to be a sufficient consideration. E. W. H. Joint creditors, § 12 shooting across highway - liability. 1. Where two parties were jointly engaged in a hunting expedition, and, during such hunt, both fired across a public highway, and a person traveling thereon was shot, the parties are jointly and severally liable, although it is impossible to tell with certainty who inflicted the injury. [See annotation on this question beginning on page 361.] APPEAL by defendant from a judgment of the Circuit Court for Lauderdale County (Bourdeaux, J.) in favor of plaintiff in an action brought to recover damages for injuries alleged to have been inflicted upon his son by negligence of defendant and another. Affirmed. The facts are stated in the opinion of the court. Mr. Charles B. Cameron, for appellant Surmise, conjecture, and guesswork cannot be made the basis of a recovery, where the law demands proof of negligence affirmatively. Bennett v. Washington Terminal Co. 55 App. D. C. 111, 2 F. (2d) 913, 24 N. C. C. A. 437; Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275; American Cast Iron Pipe Co. v. Landrum, 183 Ala. 132, 62 So. 757; Norfolk & P. Belt Line R. Co. v. White, 143 Va. 875, 129 S. E. 339; Smith v. Philadelphia R. Co. (C. C. A. 3d) 3 F. (2d) 604; Bean v. Independent Torpedo Co. (C. C. A. 8th) 4 F. (2d) 504; Hines v. Walls, 194 Ky. 379, 239 S. W. 451. Messrs. Williamson & Gipson, for appellee: Where separate and independent acts of negligence of two parties are the direct cause of 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. 26 R. C. L. 764, 765; Nelson v. Illinois C. R. Co. 98 Miss. 295, 31 L.R.A. (N.S.) 689, 53 So. 619; 38 Cyc. p. 483, § 2. Ethridge, J., delivered the opinion of the court: Lee Miles, the appellee, was plaintiff in the court below and filed suit against the appellant, L. S. Oliver, and Gordon Shamburger, for $199, his damage for an injury inflicted upon his son, Lavell Miles. The suit originated in a justice of the peace court, and judgment was rendered there in favor of Lee Miles for the amount sued for, from which judgment both Shamburger and Oliver appealed to the circuit court, where the case was tried anew. It appears from the evidence that Shamburger and Oliver had gone out into the country near Collins ville, northwest of Meridian, to hunt birds. They were traveling in a car and passed the boy, Lavell Miles, a short distance from where they stopped the car and got out and went in a westerly direction from the highway, to a point where their dogs had located a covey of partridges. When they approached this place, the partridges, instead of flying in the opposite direction, flew over their heads and across the public highway, and Oliver and Shamburger fired back towards the highway in shooting at the birds, and struck Lavell Miles, who was traveling along the edge of the highway in a footpath running along the outer ditches, but between the right of way of the highway. One of the shots fired struck the boy in the eye, resulting in its loss and the necessity of its removal; and the expense of the father in having this done, and the loss of time of the boy from his work during the period he was disabled, and the cost of an artificial eye, and the inconvenience and loss of time caused Miles, the father, constitute the subject-matter of this suit. Lavell Miles testified that he was traveling along, as above stated, when the guns fired; that he saw the smoke coming from the guns in his direction, and was struck by the shot, one in the eye and some in the leg, but that he was unable to say from which gun the shot that struck him came. At the conclusion of the plaintiff's evidence, the defendants moved for a directed verdict on the ground that the proof did not show which one did the damage, and it devolved upon the plaintiff to show this, as a condition for recovery. The special judge who tried the case below announced that, unless he would elect one or the other, he would grant this peremptory instruction. Thereupon the plaintiff - Miss. - 110 So. 666.) elected a nonsuit as to Shamburger and to proceed against Oliver, but no order was entered upon the minutes of the court in reference thereto. The suit instituted against Oliver resulted in a verdict in favor of the plaintiff for the amount sued for, and, upon this judgment, this appeal is prosecuted. Pleadingamendmentnecessity of order. It is contended by the appellant that the recovery cannot be upheld, first, because this amendment or order was not entered upon the minutes showing nonsuit, and the declaration stands as though no amendment had been made thereto, under the holdings of this court in Lackey v. St. Louis & S. F. R. Co. 102 Miss. 339, 59 So. 97, and that the rule is that no recovery can be had, where the suit is a suit for a joint tort, and not for a several tort; and, having brought suit for a joint tort, plaintiff cannot recover from one alone, and that the action of the defendants below was not joint, but was several, and therefore that one could not be held responsible for the act of the other. While the stenographer's notes show that the plaintiff elected to nonsuit as to Shamburger, the case of Lackey v. St. Louis & S. F. R. Co. supra, holds that the order must be entered upon the minutes, that the court can only speak through its minutes, and we must treat the case as being one of joint suit against the two defendants. In Sawmill Constr. Co. v. Bright and Bright v. Finkbine Lumber Co. 116 Miss. 491, 77 So. 316, we held that it is settled in this state that tort-feasors may be sued jointly and severally, and that one joint tort-feasor is not released from liability by suit or judgment against the others. In the opinion on this point, we cited and relied upon Bailey v. Delta Electric Light, P. & Mfg. Co. 86 Miss. 634, 38 So. 354. In the Bright Case, Robert Bright, a minor, brought suit against the Sawmill Construction Company and the Finkbine Lumber Company for an injury received. It is alleged that the Finkbine Lumber Company had contracted with the Sawmill Construction Company to do a portion of its work in erecting its mill; that the plaintiff was employed as a common laborer to assist in mixing or making concrete used in the construction of the said mill, and that, while thus engaged, the foreman of the defendants commanded the plaintiff to crank an engine, commonly known as the rip-saw engine and used in said plant in the construction thereof; that he was ignorant of the dangers, etc.; and that by reason thereof he was injured. The testimony in that case showed that the plaintiff was employed by the Sawmill Construction Company and was paid by that company, but that it was the practice of the Sawmill Construction Company and the Finkbine Lumber Company to work their respective employees in common and to exchange the services of the employees whenever either thought it proper to do so. It was contended by the Finkbine Lumber Company that they were not liable because the relation of master and servant did not exist. In the case of Bailey v. Delta Electric Light, P. & Mfg. Co. supra, Bailey brought suit against the Delta Light, Power & Manufacturing Company and the Cumberland Telephone & Telegraph Company to recover damages for personal injuries. The Cumberland Telephone & Telegraph Company pleaded the general issue and accord and satisfaction, and filed with the latter plea a written release from all actions, claims, etc., for the injuries received by Bailey. The Delta Electric Light, Power & Manufacturing Company pleaded the general issue and accord and satisfaction, and filed with the latter plea a copy of the release made by the Cumberland Telephone & Telegraph Company. To this plea, the plaintiff replied that, in accepting the sum paid by the Cumberland Telephone & Telegraph Company, and in executing the release, he should not be precluded from recovering against the Delta Light, Power & Manufacturing Company, because the release was not in full settlement of the cause of action, but was intended to be a partial settlement of the cause of action. The court, in its opinion, said: "The declaration states a cause of concurrent negligence, but the legal principle which fixes liability upon the two tortfeasors joined in the suit is essentially different; the Cumberland Telephone & Telegraph Company being liable by reason of an alleged failure to discharge the duty which the master owes to his servants in providing a safe place to work; the appellee [Delta Light, Power & Manufacturing Company] being liable, if at all, for the negligent act of its employees. The negligence of one is passive, and of the other active, though the negligence of both concurred in inflicting the injury. Under this state of facts, the partial satisfaction for the injuries received by the servant made by the master, not intended to be a settlement in full and not received as, nor in fact being, full compensation, cannot inure to the other person whose concurrent negligence caused the injury complained of." The court cites Louisville & E. Mail Co. v. Barnes, 117 Ky. 860, 64 L.R.A. 574, 111 Am. St. Rep. 273, 79 S. W. 261. In 20 R. C. L. p. 149, § 122, it is said: "If two or more persons united in the joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all, in respect to the control of the means or agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to the others. Accordingly, it has been held that where two persons are engaged in a joint enterprise in operating an automobile, the contributory negligence of one will bar a recovery by either, if it is a matter within the scope of the joint agreement" (citing Beaucage v. Mercer, 206 Mass. 492, 138 Am. St. Rep. 401, 92 N. E. 774). In Cullinan v. Tetrault, 123 Me. 302, 31 A.L.R. 1330, 122 Atl. 770, the court held, in a case where a person left a boy in a drug store incompetent to take charge and sell drugs, that the proprietor would be liable for the injuries caused by the boy's mistakes in attempting to sell drugs, although he was not instructed to sell drugs; but it also held that if two persons enter a drug store to procure an extract for beverage purposes, and one undertakes to make the purchase, his negligence in doing so is imputed to his companion, so as to defeat the action on the ground of contributory negligence; and that the two persons purchasing, being engaged in a joint enterprise in purchasing the beverage, the negligence of one was attributable to the other, so as to make the contributory negligence of one defeat the right of the other. In Lucey v. John Hope & Sons Engraving & Mfg. Co. 45 R. I. 103, 120 Atl. 62, the court held that, where an automobile owned by a corporation, in which only two persons were interested, was being driven by one, accompanied by the other, on a mutual pleasure trip, they were engaged in a common enterprise, so as to make the negligence of the driver in injuring a third person in a collision chargeable to the passenger, and to render them jointly liable for such injuries. In the present case, the parties were engaged in hunting jointly, and both fired across a public highway, which was a negligent act. We think that they were jointly engaged in the unlawful enterprise of shooting at birds flying over the highway; that they were in pursuit of a common pur- Joint creditorspose; that each did tort-several an unlawful act, in the pursuit thereof; and that each is liable for the resulting injury to liability. Joint, or joint and several, liability of two or more persons guilty of similar acts of misconduct one of which alone caused the injury. [Joint Creditors and Debtors, § 6.] The situation with which the reported case (OLIVER V. MILLS, ante, 357) and the present annotation deal is to be distinguished from the situation presented when the acts or omissions of two or more persons combined to produce the damage or injury complained of. It is also to be distinguished from the situation dealt with in the annotations in 9 A.L.R. 939, and 35 A.L.R. 409, under the title, "May acts of independent tort-feasors, each of which causes or tends to produce some damage, be combined to create a joint liability." Situations somewhat analogous are involved in some of the cases in the annotation on "What amounts to a joint adventure," in 48 A.L.R. 1055. Joinder in an action at law of persons not jointly liable, one or the other of whom is liable to the plaintiff, is the subject of an annotation in 41 A.L.R. 1223. The question as to the joint liability of two or more persons engaged in similar acts of misconduct, one of which alone caused an injury, is one upon which there seem to be no precise precedents. In the reported case (OLIVER V. MILES, ante, 357) two hunters were engaged in the unlawful acts of shooting across a public highway, and were held jointly and severally liable for an injury caused by a single shot to a traveler upon the highway. The nearest analogy to the question involved in this case and annotation is that involved in cases wherein it is sought to hold persons engaged in racing upon the highway jointly liable for an injury caused by one of the racers. There is, however, an apparent distinction, in that the combined acts of misconduct-that is, traveling at a negligent or unlawful rate of speed-form a situation, namely, a race, which could not exist but for the combination of the acts of misconduct; whereas the combined acts of shooting across a public highway produce no situation but one which could exist as the result of such an act by one person. The former situation is, therefore, more like that distinguished at the beginning of the annotation. In Brown v. Thayer (1912) 212 Mass. 392, 99 N. E. 237, it was held that the owners of two automobiles, being driven at a negligent rate of speed and racing with each other, were jointly or severally liable for the death of a pedestrian who was struck by one of the automobiles, the court saying: "The principle is settled by our decisions that where two or more tort-feasors, by concurrent acts of negligence which, although disconnected, yet in combination inflict injury, the plaintiff may sue them jointly or severally, although he can have but one satisfaction in damages." It will be observed in this case, however, that, due to the fact that the death statute provided that damages must be assessed severally, with separate verdicts and judgments, the plaintiff was not allowed to maintain his action against the owners jointly. In Hanrahan v. Cochran (1896) 12 App. Div. 91, 42 N. Y. Supp. 1031, it |