11 Ga. App. 385 | Ga. Ct. App. | 1912
1. Mary E. Connor obtained a verdict and judgment against Corbett & Taylor, a partnership, and K. J. Corbett and G. F. Taylor, members of the partnership, for the negligent homicide of her husband. The defendants excepted to the overruling of a general demurrer to the petition, and the refusal of their motion for a new trial. The material facts, briefly stated, are as follows: Corbett & Taylor were engaged in the sawmill and timber business, and in connection with this business operated locomotives and cars on and over the tracks of the Flint Kiver & Northeastern Kailroad, by permission of the railroad company. The deceased husband of the plaintiff was employed by the firm of Corbett & Taylor as a locomotive engineer. On the day of his death he was operating a locomotive and two cars, and G. F. Taylor, a member of the firm of Corbett & Taylor, was riding with him on the. locomotive. The deceased engineer was suffering from a scalded foot, and, a.short time before the accident, he asked Taylor to take charge of the engine for him and run it while he took off his shoe and allowed his scalded foot to cool. Taylor did so, and Connor took off his shoe and sat down on the gangway between the tender and the engine. When the locomotive was approaching a trestle Connor, from his seat, called Taylor’s attention to the fact that the trestle was on fire. Taylor replied that there was no danger, and that they would run across the trestle and stop and put out the fire. Connor said nothing more, and Taylor attempted to run across the burning trestle. The heat of the fire caused the rails to “buck,” and the engine ran off the track several feet beyond the trestle, and turned over on Connor, inflicting serious injuries, from which he died. The plaintiff charges that Taylor was negligent and reckless in attempting to cross the burning trestle; that he could and should have stopped the engine before reaching the trestle.
The view we take of the legal questions raised by the record as to the liability.of the firm of Corbett & Taylor renders unnecessary any decision of the other features of the case. Conceding that the homicide was caused by Taylor’s negligence, is the copartnership of Corbett & Taylor liable? “Partners are not responsible for torts committed by a copartner. For the negligence or torts of their agents or servants they are responsible under the like rules with individuals.” Civil Code (1910), § 3187. The second paragraph of the section has no direct application to the question now under consideration, as this part of the section manifestly refers to “agents or servants” who are not members of the partnership, and not to the partners themselves. Ozborn v. Woolworth, 106 Ga. 460 (33 S. E. 581). The first part of the section, which applies to . torts of the partners themselves, explicitly declares that “partners are not responsible for torts committed by a copartner.” The words used are exclusive; they neither express nor imply an exception. The language is a statutory declaration that any tort committed by one partner is beyond the scope of the partnership business and does not bind the partnership. In some other jurisdictions partnerships are held liable for the acts of a partner in the commission of a tort, but the statute of this State does not even make the exception that the' partnership would be liable if the tort of the partner was committed within the scope of the partnership business. “ Some courts have held that the partnership is not liable for the wilful torts of
2. Learned counsel who represented the defendant in error in
The case of Austin v. Appling, 88 Ga. 54 (13 S. E. 955), was relied on as authority for the position that this court can reverse as to Corbett & Taylor and affirm as to Taylor. The cases are distinguishable on the facts. In that case Appling sued three persons as “a partnership doing business under the name of the Fulton Lumber & Manufacturing Company,” for damages alleged to have been sustained by him in their service, arising out of the unsafe character of the place in which he was put to work. The gravamen of the suit was the failure to perform a non-delegable duty of master to servant. The evidence proved that the Fulton Lumber & Manufacturing Company was derelict in the performance of the alleged duty, and it also showed that one man composed the Fulton Lumber & Manufacturing Company. The verdict was not only against the manufacturing company, but also against the three men as composing the firm. It was ruled that the verdict could be set aside as to the two men, who the evidence showed were not members of the firm, and allowed to stand against the firm as master and against the one defendant who was the sole proprietor of the business. Here suit is brought by a servant against the master, and, under the evidence and the law applicable thereto, the
Under the allegations and the evidence, what duty did Taylor as an individual owe to Connor? It is alleged and proved that Con-nor was the servant of the firm of Corbett & Taylor, and that the firm was responsible for the negligence of Taylor as a member of the firm, not as an individual. In the suit he was found liable individually, because of his relationship to the firm, and because of personal service on him as a member of the firm. This court is for the correction of errors. It has no original jurisdiction. Taylor’s liability as an individual was never presented to the court or ruled on by the court, or passed on by the jury, disconnected from his liability as a member of the firm. The pleadings in the ease show that it was treated as a case against the firm, the liability of the members resulting from that relationship alone. The trial judge tried the case as one exclusively against the firm of Corbett & Taylor as the master of the deceased servant. In the beginning of the charge he states the case thus: “Gentlemen of the jury, this is a civil case in which Mrs. Mary E. Connor, who is the plaintiff in the case, brings suit against the partnership of Corbett & Taylor, who is the defendant in the case. The plaintiff in the case is suing the defendant for damages, or for the value of her husband, claiming that the death of her husband was caused by the negligent conduct of the defendant partnership. The defendant denies that it was negligent in the manner alleged and clajmed.” Nowhere in the charge was any suggestion made as to the individual liability of Taylor, but the instructions were confined to the question of the firm’s liability. In the conclusion 'of the charge the judge says: “If you see fit to render a verdict in favor of the plaintiff, the form of your verdict will be, ‘We, the jury, find for the plaintiff so many dollars.’ .If you find, under these instructions, in favor of the defendant, the form of your verdict will be, (¥e, the jury, find for the defendant.’” .The verdict was, “We, the jury, find for the plaintiff $5,500.” On this verdict a judgment, it is true, was rendered not only against the firm as the defendant, but also against B. J. Corbett and G. E. Taylor; but this judgment was based solely on the fact of the partnership re
We reverse the judgment of the court below because the court erred in not dismissing on demurrer the action as against Corbett and Taylor as a partnership and Corbett individually; and a new trial is granted as to the remaining defendant, Taylor, individually.
Judgment reversed.