Joseph McKenna

“ That plaintiff did not have and could not have had any cause of action against Drake or upon which to base a recovery against him, all which was known to plaintiff at the time of the institution of the action; that Drake was a man of small means, having but little property from which a judgment could be recovered, while the railway company had property more than sufficient to pay the amount sued for. That any act of negligence on the part of Drake was an act of the railway company, and it was accordingly responsible and liable for the same. ”

“ There is nothing more than a traverse of the cause of action in the present case. The attempt was made to show that Drake could not have been guilty as charged because he was elsewhere on the train. The language of the cited case is again applicable: 'As no negligent act or omission personal to the railway company was charged, and its liability, like that' of its employee, 'was, in effect, predicated upon the alleged negligence of the latter, the showing manifestly went to the merits of the action as an entirety, and not to the joinder ”