Opinion by
Holt, C.:
We are confronted at the threshold of the examination of this action, with the claim that there has been a settlement between plaintiff and John Beaumont jr., one of the defendants. The defendants claim the law to be, where several unite to do an unlawful act, and in fur[63]*63therance of the common purpose another is injured, they all are jointly liable for the injury done, “and there could be no severance of the liability of those who committed or aided in the commission of the trespass,” and say if the plaintiff absolutely released one of the joint trespassers from his liability and made a full settlement therefor with him, it would not only discharge the one intended to have been released but all the others as well, who were engaged in the assault upon plaintiff. The plaintiff, without disputing the law to be as claimed by defendants when there has been a settlement for the cause of action, contends that construing the written instrument signed by Hudson favorably for defendants it is at most only an agreement to dismiss the action against John Beaumont jr.; and claims further, that while a release and settlement of a cause of action with one who assisted in inflicting the injury might relieve all others who participated or aided in its commission, yet where the agreement was merely to dismiss the action pending against one of the defendants, or not to sue, it would affect only the one with whom the agreement was made. Plaintiff further claims that Mr. Hudson, when he executed the instrument in writing, had no authority to make any settlement of the character claimed by the defendants; that his authority as attorney for plaintiff’ simply gave him power to prosecute the action in the courts and not to settle it otherwise. (Jones v. Inness, 32 Kas. 177.)
It is unnecessary in this opinion to determine or discuss either of these legal propositions, for the findings, supported by substantial testimony, establish the fact that Mr. Hudson never intended to make a settlement of the cause of action against the defendants or either of them; it also appears that whatever talk there may have been between him and John Beaumont sr. about dismissing the action against John Beaumont jr., it was subject to his approval when Beaumont should call again, which he never did. Moreover, it is shown by the evidence and found by the jury that the plaintiff did not give his assent to what defendants claim was an agreement, in any of its phases. Therefore we are of the opinion there was no [64]*64agreement or understanding which would preclude the plaintiff from prosecuting his action against any one or all of the defendants.
This action was brought here by William Sharpe alone. It is in evidence that he was the only defendant against whom a judgment would be of any value. The other defendants are insolvent, and the main question practically in this case is, whether the defendant William Sharpe aided, abetted, and encouraged the assault upon the plaintiff? The evidence on this point comes wholly from Mr. Sharpe himself, and his co-defendants, Dayton Sharpe, his son, and Philip Starr, his stepson. When we say it comes from William Sharpe himself, we include the statements that he made in the presence of Dewey, the postmaster, and to Mrs. Anderson, and his action before 'the justice of the peace. That part of the evidence most favorable to Mr. Sharpe shows that he knew of the intention of his son and stepson to take part in the criminal assault upon the teacher of the school in the district where he lived; his efforts to restrain them were feeble; in fact, considering all his own testimony alone, it might fairly be presumed that he had no objections to the “fun,” as he termed it. He stated to them that if they were determined to go ahead in the matter, they should see the grandfather and guardian of one of the other boys about to be engaged in this unlawful purpose, and if he would consent to pay one-half of the costs, he would pay the other half. It is not the intention of this opinion to attempt to lay down the rule of what should be a proper degree of restraint by the parent over his child when he has reason to think that the child is about to engage in an unlawful act; it is well enough to say, however, there is an element in this case which distinguishes it from Edwards v. Crume, 13 Kas. 348, in which it is held that a father is not liable for the wrongful acts of his minor son of which he knew nothing before or at the time of their commission. In this case William Sharpe knew of their intentions to commit a crime, and with that knowledge he “restrained them not.” His relation to them imposed upon him certain duties and liabilities different [65]*65from those of one who had no control over them. (Hoverson v. Noker, 60 Wis. 511; Strohl v. Levan, 39 Pa. St. 177; Schouler’s Dom. Rel. 361.) But this question is very largely eliminated from the case by the answers of the jury to the questions of fact submitted to them, in which they find that the defendant William Sharpe, aided, abetted, and encouraged the other defendants in this assault. When it is established that one aids, ■abets, and encourages others in the commission of a misdemeanor, he is guilty as principal under the law, and all are liable in a civil action for any damages that may have resulted from their crime.
One of the most serious questions of the case is whether or not the findings of the jury on this point are supported by substantial evidence. The volume of the testimony is in support of the naked statement made by Sharpe himself; he is corroborated by his son and stepson; but it does appear that he made some admissions directly after this affair took place', and when he thought it a good joke, that are not consistent with his version of his talk with the boys. His statements at the post office of what he said to the boys were more in the nature of encouragement than of reproof. He said, “Well, I told the boys that if they would go down and get Mr. Anderson to pay part of the costs, I would pay the balance, if there was any, and duck him.” And of like character was his conversation with Mrs. Anderson, mother of one of the defendants, who, upbraiding him for getting her boy into trouble, said: “Didn’t you send your boys down to Anderson’s, and tell them to tell him if he would stand half of the costs you would stand the other half, and have him ducked?” and he answered, “Yes.” In both of these conversations there was an admission that it was understood between him and the boys that the teacher was to be ducked. From one we learn that he told the boys to “duck him,” and from the other, to “have him ducked.”
The defendants claim there was a condition imposed in the direction or assent to have the plaintiff ducked which would relieve defendant William Sharpe of his liability. But the [66]*66condition is a peculiar one, and one which the law would not tolerate in such a transaction as this, where they were planning to do an unlawful act; and when it comes from a father to his own son and stepson it is more in the nature of a permission than a restraint. In fact we feel justified in saying, that taking all his directions together, they could well be considered by them as an approval of their plans, and were such as would incite and encourage them to execute their unlawful purposes.
His appearance before the justice of the peace, pleading guilty to the criminal charge against him, paying his own fine and those of the boys, has great weight with us in supporting the findings of the jury.
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Opinion by
Holt, C.:
We are confronted at the threshold of the examination of this action, with the claim that there has been a settlement between plaintiff and John Beaumont jr., one of the defendants. The defendants claim the law to be, where several unite to do an unlawful act, and in fur[63]*63therance of the common purpose another is injured, they all are jointly liable for the injury done, “and there could be no severance of the liability of those who committed or aided in the commission of the trespass,” and say if the plaintiff absolutely released one of the joint trespassers from his liability and made a full settlement therefor with him, it would not only discharge the one intended to have been released but all the others as well, who were engaged in the assault upon plaintiff. The plaintiff, without disputing the law to be as claimed by defendants when there has been a settlement for the cause of action, contends that construing the written instrument signed by Hudson favorably for defendants it is at most only an agreement to dismiss the action against John Beaumont jr.; and claims further, that while a release and settlement of a cause of action with one who assisted in inflicting the injury might relieve all others who participated or aided in its commission, yet where the agreement was merely to dismiss the action pending against one of the defendants, or not to sue, it would affect only the one with whom the agreement was made. Plaintiff further claims that Mr. Hudson, when he executed the instrument in writing, had no authority to make any settlement of the character claimed by the defendants; that his authority as attorney for plaintiff’ simply gave him power to prosecute the action in the courts and not to settle it otherwise. (Jones v. Inness, 32 Kas. 177.)
It is unnecessary in this opinion to determine or discuss either of these legal propositions, for the findings, supported by substantial testimony, establish the fact that Mr. Hudson never intended to make a settlement of the cause of action against the defendants or either of them; it also appears that whatever talk there may have been between him and John Beaumont sr. about dismissing the action against John Beaumont jr., it was subject to his approval when Beaumont should call again, which he never did. Moreover, it is shown by the evidence and found by the jury that the plaintiff did not give his assent to what defendants claim was an agreement, in any of its phases. Therefore we are of the opinion there was no [64]*64agreement or understanding which would preclude the plaintiff from prosecuting his action against any one or all of the defendants.
This action was brought here by William Sharpe alone. It is in evidence that he was the only defendant against whom a judgment would be of any value. The other defendants are insolvent, and the main question practically in this case is, whether the defendant William Sharpe aided, abetted, and encouraged the assault upon the plaintiff? The evidence on this point comes wholly from Mr. Sharpe himself, and his co-defendants, Dayton Sharpe, his son, and Philip Starr, his stepson. When we say it comes from William Sharpe himself, we include the statements that he made in the presence of Dewey, the postmaster, and to Mrs. Anderson, and his action before 'the justice of the peace. That part of the evidence most favorable to Mr. Sharpe shows that he knew of the intention of his son and stepson to take part in the criminal assault upon the teacher of the school in the district where he lived; his efforts to restrain them were feeble; in fact, considering all his own testimony alone, it might fairly be presumed that he had no objections to the “fun,” as he termed it. He stated to them that if they were determined to go ahead in the matter, they should see the grandfather and guardian of one of the other boys about to be engaged in this unlawful purpose, and if he would consent to pay one-half of the costs, he would pay the other half. It is not the intention of this opinion to attempt to lay down the rule of what should be a proper degree of restraint by the parent over his child when he has reason to think that the child is about to engage in an unlawful act; it is well enough to say, however, there is an element in this case which distinguishes it from Edwards v. Crume, 13 Kas. 348, in which it is held that a father is not liable for the wrongful acts of his minor son of which he knew nothing before or at the time of their commission. In this case William Sharpe knew of their intentions to commit a crime, and with that knowledge he “restrained them not.” His relation to them imposed upon him certain duties and liabilities different [65]*65from those of one who had no control over them. (Hoverson v. Noker, 60 Wis. 511; Strohl v. Levan, 39 Pa. St. 177; Schouler’s Dom. Rel. 361.) But this question is very largely eliminated from the case by the answers of the jury to the questions of fact submitted to them, in which they find that the defendant William Sharpe, aided, abetted, and encouraged the other defendants in this assault. When it is established that one aids, ■abets, and encourages others in the commission of a misdemeanor, he is guilty as principal under the law, and all are liable in a civil action for any damages that may have resulted from their crime.
One of the most serious questions of the case is whether or not the findings of the jury on this point are supported by substantial evidence. The volume of the testimony is in support of the naked statement made by Sharpe himself; he is corroborated by his son and stepson; but it does appear that he made some admissions directly after this affair took place', and when he thought it a good joke, that are not consistent with his version of his talk with the boys. His statements at the post office of what he said to the boys were more in the nature of encouragement than of reproof. He said, “Well, I told the boys that if they would go down and get Mr. Anderson to pay part of the costs, I would pay the balance, if there was any, and duck him.” And of like character was his conversation with Mrs. Anderson, mother of one of the defendants, who, upbraiding him for getting her boy into trouble, said: “Didn’t you send your boys down to Anderson’s, and tell them to tell him if he would stand half of the costs you would stand the other half, and have him ducked?” and he answered, “Yes.” In both of these conversations there was an admission that it was understood between him and the boys that the teacher was to be ducked. From one we learn that he told the boys to “duck him,” and from the other, to “have him ducked.”
The defendants claim there was a condition imposed in the direction or assent to have the plaintiff ducked which would relieve defendant William Sharpe of his liability. But the [66]*66condition is a peculiar one, and one which the law would not tolerate in such a transaction as this, where they were planning to do an unlawful act; and when it comes from a father to his own son and stepson it is more in the nature of a permission than a restraint. In fact we feel justified in saying, that taking all his directions together, they could well be considered by them as an approval of their plans, and were such as would incite and encourage them to execute their unlawful purposes.
His appearance before the justice of the peace, pleading guilty to the criminal charge against him, paying his own fine and those of the boys, has great weight with us in supporting the findings of the jury. It appears in evidence that this matter was discussed before the justice, and knowing all the circumstances he was willing to allow the records of the justice to show a plea of guilty on his part. We have noted his excuses and explanations for his action there, but his actions are stronger proof to us than his statements of why he did so. Upon the whole record we believe the findings of the jury, that defendant William Sharpe did aid, abet, counsel and advise the ducking of plaintiff, are supported by sufficient testimony to sustain a judgment thereon.
The defendants further complain of the ninth instruction of the court, whi,ch is as follows:
“ 9. The evidence shows that defendant Dayton Sharpe is the son of defendant William Sharpe, and that defendant Philip Starr is a stepson of said William Sharpe, and at the time of the alleged commission by them of the injuries complained of said Dayton Sharpe and Philip Starr were both minors and living with and members of the family of said William Sharpe; under these circumstances said William Sharpe occupied toward his stepson, Philip Starr, as well as toward his own son, Dayton Sharpe, the relation of a parent. The general rule of law, is that a parent is not liable for the torts or wrongs of his children; yet should you believe from the evidence in this case that said William Sharpe knew of the intentions of Dayton Sharpe and Philip Starr, with others, to inflict on plaintiff the injuries complained of, and said William Sharpe made no effort to dissuade his said sons therefrom, [67]*67and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them to do the act complained qf, and sanctioned the doing of the same, then he would be liable equally with the others, defendants in this case, for all damages the plaintiff may have sustained by reason of the injuries complained of.”
They complain of this part of the instruction:
“William Sharpe made no efforts to dissuade his said sons therefrom; and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them to do the act complained of, and sanctioned the doing of the same, then he would be liable equally with the others, defendants in this case, for all damages the plaintiff may have sustained by reason of the injuries complained of.”
• They claim that the fact that William Sharpe failed to dissuade his sons from committing this offense would not make him liable for the injuries they inflicted upon the plaintiff. Erom the phraseology of the instruction such an inference is not fairly deducible. For it is stated, “and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them,” etc. The instruction does not say if he made no effort to dissuade them he would be liable, but if he made no effort to dissuade them, and did encourage and incite them, he would be liable equally with the others. They claim the word “sanctioned” means ratifying and approving the act after it was done, and being so used and construed was erroneous in the instruction, as his liability could not be made contingent upon his approval of the act after its completion. However, the word “sanctioned” may have had reference to the countenancing and approval of the plans of the boys after they were formed and before they were consummated. This instruction, if erroneous as claimed by the defendants, and we are not prepared to say it is, could at most have been only misleading; and there is proof positive that it did not mislead the jury, for the reason that the jury found that this defendant did incite, encourage and counsel the plans of the boys in committing this assault.
[68]*68The defendants in their motion for a new trial alleged as one of the grounds therefor the prejudice of the jury, and supported it with this affidavit, made by one of the attorneys for defendants:
“The affiant further says, soon after the verdict of the jury was returned in this action several of the jurors were talking in the ante-room of the court house, in which some of them remarked that they wondered if the defendants, the boys that had ducked the school teacher, would carry out their threats to ride the jury on a rail in case they found a verdict against them. I then asked if such threats had been made, and two or three of the jury replied ‘Yes;’ when they were passing in and out of the court house they had heard some of the defendants, that is, the boys that had done the ducking, remark that if the jury found a verdict against them, they would ride the jury on a rail.”
We think that this affidavit, setting forth what the jury said after the verdict, is hearsay. Affiant says two or three jurymen told him that they had heard threats made by some of the defendants, not William Sharpe, that if they returned a verdict against them they would ride the jury on a rail. None of the jurymen themselves, however, testified by affidavit or otherwise in support of the motion. This affidavit was used for the purpose of showing the verdict was the result of the prejudice of the jury. We cannot treat it as evidence, nor can we agree with the defendants that there is any evidence in the amount of the verdict itself which would induce us to believe that it was the product of prejudice against defendants. The court remitted one-half thereof, probably for valid reasons, but from the record as it comes before us we are not prepared to say that the verdict is excessive.
There is evidence showing that the injuries to plaintiff are serious and permanent. The action of the boys was brutal, and under all the environments of the case we think the judgment is reasonable in amount.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.