Schloss v. Silverman

• Decision Date: 31 May 1937
• Docket Number: 16.
• Citation: 192 A. 343,172 Md. 632
• Parties: SCHLOSS ET AL. v. SILVERMAN.
• Court: Maryland Court of Appeals

192 A. 343

172 Md. 632

SCHLOSS ET AL. v. SILVERMAN.

No. 16.

Court of Appeals of Maryland

May 31, 1937

Appeal from Superior Court of Baltimore City; Samuel K. Dennis Judge.

Action for assault and battery by Nathan Silverman against Toney Schloss and Dan Schloss, individually and as copartners trading as the Baltimore Lumber Company. From a judgment for the plaintiff against all of the defendants, they appeal.

Judgment against Dan Schloss reversed and new trial awarded, and judgment against the other defendants reversed without a new trial.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Raphael Walter and David S. Sykes, both of Baltimore (Nyburg, Goldman & Walter, of Baltimore, on the brief), for appellants.

Joseph R. Hirschmann, of Baltimore (Daniel Ellison, of Baltimore, on the brief), for appellee.

OFFUTT Judge.

Toney Schloss and Dan Schloss, copartners, trading as the Baltimore Lumber Company, conduct a lumber business in Baltimore City. Nathan Silverman is a carpenter and builder. At 10 o'clock in the morning of March 31, 1936, Silverman was engaged in making some alterations for one Erick Faven in a building at Dallas and Fayette streets in that city. While he was so engaged, Dan Schloss, one of the partners, appeared at the building and, as the consequence of an altercation between them, struck and injured Silverman.

Shortly thereafter Silverman brought this action for assault and battery against the partnership and against Toney Schloss and Dan Schloss both as members of the partnership and as individuals. The trial before the court and a jury in the superior court of Baltimore City resulted in a verdict and judgment for the plaintiff against all of the defendants, and from that judgment this appeal was taken.

The evidence in the case was legally sufficient to permit the jury to find facts which, stated in narrative form, are as follows: In March, 1936, prior to the encounter between Dan Schloss and Silverman, Silverman had asked the Baltimore Lumber Company for an estimate on the lumber needed for the work which he had undertaken at Dallas and Fayette streets. At the same time he borrowed from them lumber to prop the building, and deposited with them $5, which the company was to keep for the use of the lumber if it did not eventually receive an order for the material. It did not receive the order, but Silverman did use the props on the work. When Dan Schloss appeared on March 31, 1936, Silverman and two bricklayers were "on the scaffold working." Schloss called to him: " 'Hey, Silverman, you didn't give me that order, did you?' And he replied, 'No, sir, I gave it to the American Lumber Company.' " Schloss cursed Silverman and went away, but returned about ten minutes later, accompanied by two colored men, in a truck. He jumped from the truck and with a 4X4 piece of timber "started hammering on the corner prop supporting the second and third floors." Silverman warned him that he was endangering the occupants of the second and third floors of the adjoining house, and descended from the scaffold to find an officer. He failed to find an officer and returned. When he returned he heard Schloss instruct one of the colored men to hammer on the prop. Then, to quote Silverman's testimony: "And while I was looking up to see if the building was cracked, he smacked me right from the back and knocked me down. I felt the blood--he split my head, and blood was running down over my face, and I got up--I was dizzy, and he smacked me again and knocked me down again." Schloss then left in the truck, and Silverman was taken to a physician, who treated him for his injuries. The props supporting the building were those which Silverman had borrowed from Schloss.

Another description of the occurrence was given by Vernall Wyatt, who said: "This gentleman (indicating Silverman) was simply standing with his back turned, looking up at the building, and this other gentleman walked up behind him and hit him and knocked him down, and this gentleman (indicating Silverman) didn't make no ambitions at all to hit him, he looked like he was scared, and he did go around the corner like he was looking for an officer. * * * He (Schloss) hit him first, struck him and knocked him out, and this guy (Silverman) jumped up, and then he ran and grabbed him and mugged him, like." She also said that when Schloss drove off, Silverman was "bleeding terribly."

Dan Schloss, when called by the plaintiff, said that he was "in charge of the office" even when he was "up where the construction job was under way," and that he "thought" his father (presumably Toney Schloss) knew that Silverman had borrowed the props. Testifying for the defendants, the same witness said that after he had given Silverman an estimate based upon blueprints furnished by Silverman, Silverman told him to proceed with the order, and that certain "frames" were actually supplied under it, that the props were loaned on the "strength" of the order, that some days later he went to "his job" to inquire when Silverman wanted the lumber, that he saw their props in use, and other lumber on the pavement which they had not shipped. He then told Silverman that "he does a very dirty trick to secure the lumber somewhere else and use our props, and I told him I was coming back for them, and to have them ready. It wasn't but ten minutes or so later that I came back in our truck and stopped directly in front of the building, and said, 'Mr. Silverman, can I have my props?' and he said 'No.' " The witness further said: "And there ensued an argument, and I walked to the truck and took a short piece of lumber that I was going to use for the sole purpose of intimidating him to give back the props." He then said he had struck Silverman in defending himself, and that he was not the aggressor.

At the close of the whole case the plaintiff offered two prayers, which were granted; the defendant Dan Schloss four, of which the first and third were granted, the fourth modified and granted, and the second refused; and Toney Schloss individually and Toney Schloss and Dan Schloss, trading as the Baltimore Lumber Company, five, of which the first and third were refused, the fourth and fifth granted, and the second modified and granted.

The record submits five exceptions; the fifth relates to these rulings on the prayers; the others to rulings on questions of evidence.

The important question presented by the appeal is raised by the refusal of the first prayer offered by Toney Schloss and Toney Schloss and Dan Schloss, trading as the Baltimore Lumber Company. That prayer was a demurrer to the evidence relating to the liability of Toney Schloss and the partnership for the harm caused to Silverman by acts of Dan Schloss. It is based on the theory that the act of Dan Schloss in assaulting and beating Silverman was not within the scope of his authority as a member of the partnership, that it was not expressly authorized by the partnership nor by Toney Schloss, and that in the absence of authority express or implied from Toney Schloss or the partnership, neither was liable for such unauthorized acts of Dan Schloss.

The appellee, on the contrary, contends that the battery was committed by Dan Schloss in the course and promotion of partnership business, that therefore the partnership was liable for harm caused thereby to the plaintiff, and that as a legal consequence each of the partners was also liable individually for such harm.

The liability of one copartner for the tortious acts of another is analogous to the liability of a principal for the acts of his agent, since each partner acts both as principal and as the agent of the other as to acts done within the apparent scope of the business and purpose of the partnership and for its benefit. 1 Rowley on Partnership, §§ 509, 485; 47 C.J. 884; 20 R.C.L., Partnership, §§ 94, 126. The test of the liability of the partnership and of the several members thereof for the torts of any one partner is whether the wrongful act was done within what may be reasonably found to be the scope of the business of the partnership and for its benefit, Ibid; Cooley on Torts, § 88, and the scope of the authority of a partner is determined by the same principles as those which measure the scope of an agent's authority.

It has been said that that general rule is not applicable to the liability of one partner for the willful and malicious torts of another, Cooley on Torts, § 88, because such torts cannot be considered as within the usual scope of partnership business, Ibid., but it is not altogether certain that the general rule is not applicable to such cases, because the conclusion that willful and malicious wrongs are not within the scope of an ordinary partnership may be a mere factual inference. The case of McIntyre v. Kavanaugh, 242 U.S. 138, 139, 37 S.Ct. 38, 39, 61 L.Ed. 205, cited as in apparent conflict with the rule that willful and malicious torts are not to be considered as within the usual scope of the business of an ordinary partnership, does not go as far as that. The court there was dealing with a case in which a partnership engaged in business as brokers wrongfully converted certain securities. Thereafter the firm and its members were adjudged bankrupts. The depositor then sued one of the partners who pleaded his discharge, personal ignorance of and nonparticipation in any tortious act. The court there said: "That partners are individually responsible for torts by a firm when acting within the general scope of its business, whether they personally participate therein or not we regard as entirely clear. Castle v. Bullard, 23 How. 172, 16 L.Ed. 424; In re Peck, 206 N.Y. [ 55] 56, 99 N.E. 258, 41 L.R.A. (N.S.) 1223, ...