99 So. 761 | Miss. | 1924
Lead Opinion
The material averments of the declaration are that J. D. Weeks and Knox Russell are partners engaged in *73 the retail drug business in the municipality of Ackerman; that deceased, Gan D. Idom was employed by the Illinois Central Railroad Company and the Western Union Telegraph Company to look after their business at night, with offices in the depot of the town; that prior to the killing of deceased there had been several robberies committed in the town, and several stores had been broken into, and that a strict watch was being maintained in the town for the purpose of apprehending any burglars; that on the night of June 20, 1920, the defendants laid a scheme whereby to capture the burglars, and with the full knowledge and consent of both partners they agreed and undertook to guard the partnership store, and to guard the partnership property from depredation and loss; that Russell, as a partner, and with the knowledge, consent, and approval of his copartner, concealed himself in their store, heavily armed, with two other persons, all acting in the capacity as agents and employees of the said partnership, that these three men secreted themselves in the drug store of the partnership to await the coming of burglars; that about three o'clock in the morning of the 21st of June the deceased, Idom, from the depot, his place of business, saw what he supposed to be a light in the drug store, and, knowing of the recent burglaries, presumed some one was attempting to burglarize the drug store of the defendants; that he, with two companions, went from the depot over to the drug store to investigate; that as they approached the door of the drug store the defendant Knox Russell, without warning of any kind, recklessly, willfully, and carelessly, and negligently shot at the deceased, inflicting a fatal wound, from which Idom died about fifteen hours later.
There was a plea of the general issue by the partnership, and a special plea by J. D. Weeks, in which he alleged that he was not a partner of Russell in undertaking to defend the town of Ackerman or any particular property in the town against burglars; that he had no knowledge *74 of and did not consent to the undertaking of Russell to guard or help guard the town or any particular property; neither did he agree or consent that Russell should guard the drug store of Weeks and Russell; that the act of Russell in undertaking the duties of a guard was his own individual act, and not the act of a partner for which the defendant Weeks was responsible. To this special plea there was a replication by the plaintiffs alleging that Russell at the time of the fatal shooting was acting within the scope of the partnership business by undertaking to guard and protect the partnership property.
The material part of the testimony relating to the unfortunate killing of Idom is as follows: The sheriff of the county testified that a few nights before, the post office and a store had been entered by burglars, and that in the early part of the night of the killing it was reported there were some suspicious characters in the town, and the sheriff and marshal, along with some other citizens, looked around. The defendant Russell was in the crowd. There was general excitement in the town because of the burglaries. That this party broke up about nine or ten o'clock. No one was deputized by the sheriff to guard the town that night. The sheriff was notified about the killing about four o'clock in the morning. When he reached the town Idom was in the depot. When he reached the depot he was informed that there was a dead man over in front of Weeks Russell's Drug Store. He then went over there, and found the body of Robert Quinn. Knox Russell told the sheriff that he shot Idom. Russell's statement was to the effect that some persons came to the door, and he took them to be burglars, and shot twice. The bullets went through two wire screen doors. Russell further stated to the sheriff that he had placed himself in the drug store under a bench near the front door to watch for burglars; that he thought they would get them that night. Two other men were in the *75 store with Russell. Russell shot twice, fatally wounding Quinn and Idom.
The sheriff further testified that Weeks Russell were partners engaged in the drug business; that Russell principally attended to the business; and that Dr. Weeks stayed in the drug store sometimes, and probably filled some prescriptions, and occasionally waited on a customer, but the principal business of the partnership was conducted by Russell. The sheriff further testified that previous to that night, in all there had been about five or six houses and stores entered by burglars.
Garland Weaver was with Idom and Quinn at the time of the shooting. He testified that it occurred between three and four o'clock in the morning; that prior to the shooting the three of them were in the depot; that they saw over in the drug store a light two or three times which they took to be from a flash light; that they concluded to go over and investigate; that they tiptoed up to the front door of the drug store, and there Idom and Quinn held a whispered conversation for about five minutes. And then one of the men who was shot shook the lock on the door. After shaking it the first time, something was said between Idom and Quinn, whereupon the lock of the door was shaken again, and immediately the two shots were fired.
It was a very dark night, and evidently impossible to identify any one with whom you came face to face. This in brief was the material testimony introduced on behalf of the plaintiffs. At its conclusion, upon motion of the defendants, the testimony was excluded, and the peremptory instruction given on behalf of each defendant.
From a judgment in favor of the defendants this appeal is here prosecuted.
First, it is the contention of the appellant that the question of whether or not Russell willfully, recklessly, and negligently shot Idom, and is therefore liable therefor, under this testimony was one of fact to be decided by *76 the jury; second, that at the time of the shooting Russell was guarding the property of the partnership, and preserving the corpus of the firm's business, and that this act was performed in the course of the business for the purpose of preventing a loss of its goods, and was therefore an act performed within the course of the business of the partnership, for which both partners are liable. As to the question of the liability of the defendant Knox Russell, the testimony of the plaintiff as set forth above was sufficient to submit it to a jury.
Second. Weeks and Russell were partners engaged in the drug business. The partnership and each member is, of course, liable for the act of one partner in the transaction of this business. There is no testimony to show that the members of the firm contemplated the guarding of the store at night. It does not show that they employed a night watchman for this purpose, nor that either or both members of the firm were expected to do this kind of police or guard duty. The ordinary partnership business of this character does not contemplate guarding the property during the dead hours of the night when the store is not open for the transaction of business. Dr. Weeks knew nothing of the plan of Russell to conceal himself in the store, and there watch for and try to apprehend any burglars. The admission of Russell to the sheriff was not that he was in the store for the purpose of trying to protect the property of the firm, but that he was there for the purpose of trying to apprehend and capture the burglars. According to this statement of Russell his dominant purpose was not for the preservation of the partnership property but rather to try and capture the burglars. The store is situated in the business part of the town where the other business stores are. The relationship existing between partners, and the liability of one partner for the act of another, is the same as the liability of the principal for the act of his agent. In other words, the ordinary rules of agency govern the liability of one partner for the act of another. *77
If the act or tort of the partner be committed while he is engaged in the partnership business, and is in furtherance of the interest of the partnership, then the partnership and all partners are liable. This rule is well stated in the case of Page v. Banking Co. et al.,
"One partner may be rendered liable for the acts of his copartner. Whether or not he is so liable is to be determined by the application of the rules governing the relation of principal and agent; and generally the partnership is liable for the act of one of the partners, if it would have been liable had the same act been committed by an agent intrusted by the firm with the management of its business. 17 Am. Eng. Enc. Law (1 Ed.), 1066. If a tort be committed by one partner while engaged in a transaction within the scope of the partnership business, and such tort be committed in furtherance of the interests of the partnership, it will be liable. But it will not be liable for a tort committed by one partner in a transaction outside of the partnership business, where he acts from his own private malice or ill will, unless the act which constituted the tort was authorized by the members of the partnership, or subsequently ratified by them; the act itself having been done in their behalf and interest. Mechem, Partn., sections 204, 205; T. Parsons, Partn. (4th Ed.), sections 100, 102, 105; 1 Bates, Partn., section 461; 1 Lindley, Partn., sections 149, 150; 1 Jaggard, Torts, section 99; Barbour, Partn. (2 Ed.), p. 350, chapter 2, section 13. The authorities just cited establish simply that, as a partnership is an aggregation of individuals, where each one is the authorized agent of the others to perform any act within the scope of the partnership enterprise, if one of them, in the prosecution of the business of the partnership, be guilty of a willful wrong towards another, the other partners will be liable, and that, if one partner is guilty of an act outside of the partnership business which causes any injury, the other partners will not be liable, unless it appear that such act was *78 expressly authorized by them, or, after the same had been performed in their behalf and interest, they had either expressly ratified the same or knowingly received the fruits of the wrongful act."
It was not within the scope of the partnership business, and the ordinary partnership agreement does not contemplate, that one partner, when the place of business is closed for the night, shall go to the store and there conceal himself to try and capture burglars.
The Mississippi authorities relied upon by appellant areHeirn v. McCaughan,
In the Heirn Case, supra, the tort of the partner complained of was with reference to the business of the firm and an incident to its business.
In the Goings Case, supra, the court said that in the seizure of the cotton "Pattison acted . . . as the agent of the firm; it was in the prosecution of the firm's business and under claim of title for the firm that he seized the cotton and placed it in their warehouse. Under these circumstances Robinson, even though he personally took no part in the illegal act, was equally liable at the suit of the owner" — (Citing authorities.) In that case Pattison was clearly transacting the usual business of the firm, namely, in collecting accounts and taking possession of the firm's property.
The correct rule is also well stated in the case of Marks v.Hastings, 101 AIa. 165,
"Though a partnership is responsible for the wrongful act of one of its members, committed in the course, and for the purpose of transacting the partnership business, the willful tort of one partner, when not so committed, is not imputable to the firm."
"Course of business" as defined in Bouvier's Law Dictionary, Rawles Third Rev., is "what is usually done in the management of trade or business." The act of Russell in this case was not committed within the course of business of the partnership. *79
In the case of Persons v. Oldfield,
"The authority of one partner to bind his copartner is placed solely upon the ground of agency, and hence one can bind the other only within the scope of the agency."
The same doctrine applies to the liability of the master for the tort of the servant. In the case of Hines v. Cole,
The court was correct in giving a peremptory instruction in favor of Dr. Weeks, but committed error in giving one in favor of Russell.
Affirmed as to Weeks, and reversed and remanded as to Russell.
Dissenting Opinion
I dissent from the opinion of the majority in so far as it holds that the record warranted a peremptory instruction in favor of J. D. Weeks, one of the partners, but agree with the majority as to Russell's liability. Russell was the managing partner of the business, and had general control of the drug store. Dr. Weeks sometimes assisted in the business, but was engaged in the practice of medicine, and was not regularly in the store.
As stated in the majority opinion, there had been some burglaries in the town of Ackerman, and rumours of others to be committed, and on the evening prior to the killing there had been a general meeting of the citizens of the town for discussing plans for meeting the situation. The crowd, however, dispersed, and Rassell went to the store, taking two other persons with him, and entered the store. The record does not show that he served any notice on any of the people of the town of his purpose of being in the store to guard the store. He had not been deputized, as far as the record shows, to serve in any capacity as an officer in policing the town, and he *80 was not engaged in such duty at the time of the killing, but was in his own place of business armed, and the evidence shows that a light flashed on and off in the store which attracted the attention of the deceased and his companions who were at the railroad depot, the plaintiff's husband being an agent engaged in the business of the railroad company and of the telegraph company at the depot. These parties, having been with the citizens in their meeting, and fully advised of the fears of burglary, suspected that burglars were in the drug store, and proceeded to the store, and tried the door to see if it was open. Russell and his companions made no effort whatever to arrest the parties, did not call out to them to surrender, or give them any notice whatever that they were the parties who were inside the store, but Russell, who was armed with a pistol, raised up from the floor fired two shots, resulting in the death of the two men. Russell was a partner and joint owner of the goods in the drug store, and manifestly was there solely for the purpose of protecting the property of the partnership.
If it is the duty of a partner to preserve and protect the partnership assets, then without doubt Russell was engaged in and about the business of the partnership at the time of the killing, and the killing was for the purpose solely of preventing the store from being burglarized, as there was no effort whatever to make an arrest.
L 20 Ruling Case Law, p. 882, section 94, under the heading "Agency of Partners," the law is stated as follows:
"The law of partnership is a branch of the law of agency. The functions, rights, and duties of partners in a great measure comprehend those of agents, and the general rules of law applicable to agents likewise apply to partners. Accordingly the liability of one partner for the acts of his copartners is founded on the principles of agency. Every partner in a commercial partnership, apart from any special powers conferred on *81 him by the articles of copartnership, is not only a principal, but also a general and authorized agent of the firm, and the agent of all the partners for all purposes within the scope and objects of the partnership. Thus it is that a partner embraces the character both of principal and agent. With respect to the concerns of the partnership, he virtually acts as principal for himself and as agent for his partners. During the existence of a partnership therefore each member is deemed to be authorized to transact the whole business for the firm, his acts being treated as the acts of all, and binding on them, just as if they were present and sanctioning that which is done, whether it is done in the firm name or in the name of a partner."
In Heirn v. McCaughan,
"A partner cannot bind the firm by an act clearly not within the partnership business; yet he has power to bind the firm in all parts of the business in which it is engaged, and in all transactions, whether direct or incidental, appertaining to its business. And though the partner exceed the terms of the partnership, yet so far as third persons, having transactions with them, without notice, are concerned, the copartners are bound, if the transaction be such as the public may reasonably conclude to be embraced within the partnership business, or be incident or appropriate to such business, according to the course and usage of carrying it on.
"The tort of one partner is considered the joint and several tort of all the partners, wherever the wrongful act complained of is connected with the business of the firm or is incidental to it, as the business is carried on; and a partner who has no direct participation in the tort of his associate, is chargeable civiliter to the same extent (including exemplary damages) as the real actor is bound." *82
At page 50 of this report (32 Miss.), our court said:
"It remains only to consider the grounds upon which it is urged that a new trial should have been awarded on the defendant's motion, and which have not already been considered.
"First. It is said that, as there was no evidence tending to show that Heirn had any actual participation in making the appointment for the stoppage of the boat at Pascagoula, or in giving the notice, or in the failure, he could not be held responsible, though his copartners, Geddes and Grant, might be; for one partner is not chargeable with the tort of his copartners, done without his knowledge.
"This would be true if the wrongful act was wholly unconnected with the partnership business. But where it is connected with the business of the firm, and is incident to it as the business is carried on, the tort of one partner is considered the joint and several tort of all the partners; and the partner doing the act is considered as the agent of the other partners. And it is held that, in such cases, all the members of the firm may be sued, or any one of them may be sued alone."
In the case of Robinson Pattison v. Goings,
In Russell v. Palatine Ins. Co.,
"A servant intrusted with his master's goods may do what is necessary to preserve and protect them, because *83 his authority to do so is clearly implied by the nature of the service."
If therefore one partner is the agent of the other partner for the purposes of the partnership, then Russell had the right to protect the assets of the partnership from being burglarized, and, if in attempting to do this he negligently and unnecessarily killed the plaintiff's intestate, then both members of the partnership are clearly liable for such wrongful killing. It seems to me that it could not be contended that Russell did not have the authority to employ a person to go in the store and guard it, and, if he had done so, and such person so employed to guard the property had negligently killed the parties who were killed in this case, both partners would have been liable; Russell having full authority to make any contract for such purpose. It seems to me it could not be disputed that a partner is under duty to preserve and take care of partnership property, and, if he had knowledge of the burglary or theft which would lead him reasonably to believe that such would be committed, and failed to take some action to prevent the burglary or theft, that he would be liable to his partner for the damages or theft, unless he gave due notice to the other partner so that he would take proper steps to protect his own interests.
It is well-settled law that a person or a corporation is liable for the acts of his employees and agents committed in the scope of their employment, even though they act unnecessarily or willfully in performing the act which lies within the scope of their employment.
In King v. I. C. R. R. Co.,
In N. O. J. G. N. R. R. Co. v. Allbritton,
"In all cases where it appears that the employment of the principal afforded the agent the means or opportunity, which he used while so employed, in committing an injury on a third person, the principal must be held responsible. The willful trespass, or injury of the agent, derived from the authority confided to him by the principal, as a source of power, in the exercise of his master's employment, will make the principal responsible. And this upon the reason, that he who employs and confides should be the loser rather than a stranger — a rule of justice entirely consonant with the maxim of the Roman law already cited."
In Valley Dry Goods Co. v. Buford,
In Pearson v. Great Southern Lumber Co.,
"(1) A corporation is liable in damages for an unlawful arrest instigated by one of its employees acting in the pursuit of an object relating to the business of his employer, and designed to be of benefit to it.
"(2) Where the electric bulbs of a corporation had been broken by unknown persons, and a watchman in the employ of the corporation causes the arrest of a person whom he suspects of having broken some of them, he is acting for the benefit of the corporation, and, if the arrest is illegal, and without probable cause, the corporation is liable to the person illegally arrested, and the fact that the arrest is actually made by some one other than the watchman, but at his instigation, does not shift the liability of the corporation.
"(3) An arrest for a misdemeanor not committed in the presence of the officer arresting should not be made without an affidavit and warrant, and, where this is done without a sufficient inquiry as to the guilt of the party arrested, the person or corporation responsible for the arrest is liable in damages."
To the L.R.A. report in this case, at pages 1249 et seq., is a case note citing a number of cases pertinent to the inquiry now before the court. I quote from the case note as follows:
"Thus the master is liable for the act of his watchman in assaulting and arresting one whom he erroneously believed to be a trespasser, where he had authority to *86
eject trespassers from the master's premises and to arrest them for trespassing. Childers v. Southern P. R. Co. (1915),
"A private detective, employed by a store company to guard its property from theft, and to report to the company or to the city detectives when thefts were committed, was acting within the scope of her authority in following a person suspected of carrying away the company's property, and procuring her arrest by a policeman away from the store, rendering the store company liable for false imprisonment.L. S. Ayres Co. v. Harmon (1914),
"Evidence that a peace officer was employed by proprietors of a store to guard the merchandise from theft, detect thieves, and recover property that had been stolen is sufficient to warrant a court in submitting to the jury the question whether the officer was acting within the scope of his employment, so as to render the proprietor liable for his conduct, in following from the store and assaulting and arresting a woman whom he suspected of shoplifting. Perkins Bros.Co. v. Anderson (1913), — Tex. Civ. App. — ,
"A deputy constable, employed by the manager of a show to preserve order, was acting in the course of his employment rather than in his official capacity as a public officer, so as to render the employer liable for his conduct, in settling a dispute as to who was entitled to a seat, and in forcibly removing and arresting and incarcerating a person who refused to vacate the seat, where he was instructed to settle the dispute, although he was not instructed to make the arrest.Rucker v. Barker (1912), — Tex. Civ. App. — ,
"A watchman employed to protect the property of a railroad company, and to make arrests, was acting solely in the furtherance of the company's business and in its interest in arresting a person suspected of stealing property from the cars, so as to render the company liable *87
where the arrest was wrongful. Louisville N. R. Co. v. Owens (1915),
In "Thomas v. Canadian P. R. Co. (1906), 14 Ont. L. Rep. 55, 8 Ann. Cas. 324, MULOCK, C. J., said: `As watchman, deriving authority from the company, it was his duty to protect the property on their premises which they had intrusted to his care, and he was thus clothed with implied authority from them to do such reasonable acts as he might, on the exigency of the moment, deem necessary, in order to prevent injury to their property. If, therefore, he had found the plaintiffs on the premises of the defendants, endeavoring to steal the property placed by them under his charge, it would have been within the scope of his authority, as their servant, to arrest them, if he deemed it advisable to do so, in order to perform his duty as watchman, of preventing injury to the property in question. But such was the limit of his implied authority, and any acts of his in excess of such authority would not bind the defendants.'"
In Conchin v. El. Paso S. W. R. R. Co., (1910),
In Johnston v. Chicago, St. P., M. O. R. Co.,
In Magar v. Hammond,
For other cases see, Mayor, etc., of City of Vicksburg v.Holmes,
If we substitute the word "principal" for "master," and the word "agent" for "servant," these cases are precisely applicable to this suit. The relationship of partners involves, not only rights and liabilities between the partners, but also with other persons dealing with or affected by the partnership. As stated by the editors of the L.R.A., first series, and the case note to the 51 L.R.A. 469, toward the end of the note, there can be no sound reason for applying one rule to a corporation and another to a partnership.
I am requested by the Chief Justice to say that he concurs in the views herein expressed.
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