#### Wear-U-Well Shoe Company v. Armstrong.

Opinion delivered March 12, 1928.

*596 Duty & Duty, for appellant.

Rice & Dickson, for appellee.

Kirby, J.,

(after stating the facts). Appellant contends that certain instructions qbjeeted to were erroneous, but a careful examination of them does pot disclose any error committed, and the court gave all the instructions asked by appellant, except the one for a directed verdict. It is insisted, however, that the court erred in returning judgment against appellant upon the jury’s separate verdict for a larger sum than the amount the jury found -against the joint tort-feasor, Buie.

In the case of Spears & Purifoy v. McKinnon, 168 Ark. 357, 270 S. W. 524, where the plaintiff was injured through the joint negligence of two surgeons, and recovered a judgment for damages in the total sum of $7,000, which recited that one-half thereof, or $3,500, be recovered against each of the defendants, the court modified the judgment pronounced thereon, limiting the total sum • recovered to $3,500, saying that the defendants were joint tort-feasors and liable as such, if at all, but, as there was only one tort and one damage, there could be only one recovery, and, as the jury had fixed the - liability of each tort-fepsor at $3,500, there could be no greater recovery against either or both of them than that sum.

So here there was only one tort committed and one damage resulting therefrom, and, since the jury fixed the liability of each tort-feasor and that of Buie, who 'actively committed 1 he wrong, his company only being *597liable therefor as having consented thereto and authorized his act, and since he was liable also for the whole damage resulting, there could be no greater recovery against either or both of the joint tort-feasors than the lower sum assessed by the jury against Buie, $750.

The lower court should only have rendéred a judgment upon the finding or verdict of the jury in the said sum of $750, which can and will be rendered here. See Coleman v. Gulf Refining Co. of La., 172 Ark. 428, 289 S. W. 2, 26 R. C. L., § 32, page 780; Marriott v. Williams, 152 Cal. 705, 93 P. 875, 125 Am. St. Rep. 87; Smithwick v. Ward, 52 N. C. 64, 75 Am. Dec. 453; and Nashville Ry. etc. Co. v. Trawick, 118 Tenn. 273, 99 S. W. 695, 10 L. R. A. (N. S.) 191, 121 Am. St. Rep. 996, 12 Ann. Cas. 532.

The judgment is modified accordingly as indicated, and, as modified, will be affirmed. It is so ordered.