167 A. 315 | Pa. | 1933
Argued April 11, 1933. This appeal is from the entry of judgment for the defendant on an affidavit of defense in the nature of a demurrer to an amended statement of claim. Plaintiff, a guest in an automobile driven by Harry R. Brown, was injured in the State of New York, April 24, 1931, by reckless driving. Brown was killed in the resulting accident. At the time, he and Arthur R. Brown were partners in the business of selling automobiles and maintaining a garage in Athens, Pennsylvania. The disastrous journey was in the ordinary course of the business of the partners. On September 8, 1931, Arthur R. Brown died, testate. Letters testamentary were issued to his executrix by the Orphans' Court of Bradford County, Pennsylvania.
In March, 1932, to recover for personal injury, plaintiffs brought this action against "Edith M. Brown, executrix of the estate of Arthur R. Brown, surviving partner of Arthur R. Brown and Harry R. Brown, copartners, trading and doing business under the firm name and style of the Athens Motor Company." Pursuant to section 20 of the Practice Act, the executrix objected that the statement of claim set forth no right of action either against Harry R. Brown or against Arthur R. Brown who died before suit was brought, or for which his estate was liable; that plaintiff had not averred (cf. Usher v. R. R. Co.,
Unless the law of New York provided a right of action for the tort, none exists; without a right of action, the suit must fail; if a right exists, it must be pleaded: Usher v. West Jersey R. R. Co.,
Appellant attempts to meet that objection by contending that the partnership is a "legal entity," responsible (in the words of her brief) "after the individual liabilities of the partners may have been terminated by their deaths"; that the entity "continues until its affairs are wound up" and that, accordingly, it is answerable for this tort, although by the common law no recovery could be had against the estates of the joint and several tort-feasers. She cites decisions prior to the partnership act holding, or containing statements, that a partnership is an artificial entity, and also refers to various sections of the Pennsylvania partnership statute, said to support the "entity" theory. Passing the failure to aver in the statement of claim that such provisions are also the law of New York, it is sufficient, for present purposes, to say that it is well known that the act was drawn and enacted to give effect, as its terms indicate, to the common law or aggregate theory that partners are joint principals in partnership transactions, holding property as tenants in partnership, and not to give effect to the theory that the partnership is a legal or fictitious person, which owns the property, and for whom the partners act as mere agents.*
From the section of the New York law, quoted above, appellant selects the declaration that "the partnership is liable therefor to the same extent as the partner so acting or omitting to act," and contends that the word "partnership" designates a legal or fictitious person. The argument is then made that this person remains answerable for the personal injury in question. But the term partnership, as there used, refers to the fact that persons have associated themselves "to carry on as co-owners *129 a business for profit" (section 6); the use of the word was not intended to establish or recognize the creation of a legal person by the mere fact of association for the purpose stated in the partnership agreement.
As no cause of action is averred in the amended statement, the judgment is affirmed.
