Cooley v. SlocumCooley v. Slocum
David A. Hughes, Gist, Methvin & Trimble, Alexandria, for defendants-appellees-respondents.
Dissenting Opinion of Summers, J., February 26, 1976.
TATE, Justice.
We granted certiorari, 318 So.2d 45 (La.1975), to review the dismissal of the plaintiff Cooley‘s claim in tort against the defendant Guinn and his liability insurer. The issue is whether a partner may be individually liablе to an employee of the partnership injured as a consequence of the partner‘s negligence at work.
The partnership was the injured claimant‘s employer. His exclusive remedy against the partnership, his employer, for his work-injuries wаs for workmen‘s compensation benefits.
By this tort suit, the employee Cooley prays for recovery for his personal injuries at work from the defendant partner, Guinn. Cooley contends that his injuries were caused by the persоnal negligence of Guinn while he was working with the plaintiff Cooley. The plaintiff employee thus sues the defendant partner as a negligent third person, with a legal personality separate and distinct from the partnership itself.
The court of appеal affirmed the trial court‘s summary judgment dismissing the employee‘s tort suit against the partner. 313 So.2d 606 (La.App. 3d Cir. 1975). It did so in reliance upon three intermediate decisions to the same effect: Leger v. Townsend, 257 So.2d 761 (La.App. 3 Cir. 1972), certiorari denied 261 La. 464, 259 So.2d 914 (1972); Cockerham v. Consolidated Underwriters, 262 So.2d 119 (La. App. 2 Cir. 1972), certiorari denied 262 La. 315, 263 So.2d 49 (1972); and Bersuder v. New Orleans Public Service, Inc., 273 So.2d 46 (La.App. 4 Cir. 1973).
These decisions essentially held that, even though under our civil law a partnership is a separate entity from its members, partners cannot as a general rule be sued for partnership debts during its existence. Kline v. Dawson, 230 La. 901, 89 So.2d 385 (1956); cf. also Brinson v. Monroe Automobile & Supply Co., 180 La. 1064, 158 So. 558, 96 A.L.R. 1206 (1934). Cockerham infеrentially suggested that the secondary liability of the partners individually for the partnership‘s torts could not be the basis of a tort suit аgainst a partner, when the partnership itself is exempt from liability for the tort (i.e., because of the exclusiveness of cоmpensation remedy).
These decisions have received uniform scholarly criticism. Dean Milton Harrison, Work of the Appellate Courts—Partnership, 34 La.L.Rev. 265 (1974); Note, 34 La.L.Rev. 654 (1974). As these analyses point out, under settled civilian theory the partnership is an entity separate and apart from the partners who compose it, a civil person independent of the legal рersonalities of its partners. Trappey v. Lumbermen‘s Mutual Casualty Co., 229 La. 632, 86 So.2d 515 (1956).
Thus, as the commentaries point out, a partner is a different legal person than the partnership itself. Therefore, for the purposes of
Insofar as not factually distinguishable, the error in the reasoning of the intermediate Leger, Cockerham, and Bersuder decisions, cited above, is that they failed to recognize that a partner‘s personal liability for his own fault is an obligation owed by him individually independent of any liability of the partnership itself arising out of the incident.
A partner is thus individually liable to an employee of the partnership injured by the pаrtner‘s personal fault, just as is one employee of a corporate individually liable for injuries caused by his personаl negligence to a co-employee. Canter v. Koehring Company, 283 So.2d 716 (La.1973). In both instances, the individual liability of the negligent actor is independent of the liability of the partnership or corporate employer in workman‘s compensation for injuries so caused. (Of course, the employer may be entitled to be indemnified for compensation payments from the proceeds availablе for the tort recovery.
Our decision in Trappey v. Lumbermen‘s Mutual Casualty Co., 229 La. 632, 86 So.2d 515 (1956) held that a partner injured in the course of his employment with his partnership has a cause of action in workmen‘s compensation against it. We thus recognized that the legal personality of a partnership is sepаrate and distinct from the legal personalities of the partners who comprise it—that the partnership and each of the partners are separate persons.
Our decision today holds that a partner is a third person insofar as the еmployment relationship between the partnership and its injured employee. It is consistent with Trappey. Insofar as inconsistent with Trappey and our decision herein, we оverrule the cited intermediate decisions in Leger, Cockerham, and Bersuder, as well as Obiol v. Industrial Outdoor Displays, 288 So.2d 425 (La.App. 4th Cir. 1974) which followed them.
For the reasons assigned, therefore, we reverse the summary judgments of the district аnd intermediate court which dismissed the plaintiff Cooley‘s suit against the defendant Guinn and (insofar as this claim) his insurer; and we remand this casе to the district court for further proceedings
Reversed and remanded.
SANDERS, C. J., dissents.
SUMMERS, J., dissents and assigns reasons.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
An employee‘s remedy on account of a personal injury for which he is entitled to compensation shall be exclusive of all other rights and remedies of such employee.
In my opinion, a partner is not a third person as contemplated in the above statute. A partnership is a contract between two or more persons for mutual participation in the profits which may accrue from property, credit, skill or industry furnishеd in determined proportions by the parties.
SUMMERS, Justice (dissenting).
I dissent for the reasons assigned by Mr. Justice MARCUS.