Cody v. J. A. Dodds & Sons

• Decision Date: 15 August 1961
• Docket Number: No. 50329,50329
• Citation: 252 Iowa 1394,110 N.W.2d 255
• Parties: Elmer J. CODY, Guardian of Thomas Dodds, a Minor, Appellee, v. J. A. DODDS & SONS, a partnership, Appellant.
• Court: Iowa Supreme Court

Page 255

110 N.W.2d 255

252 Iowa 1394

Elmer J. CODY, Guardian of Thomas Dodds, a Minor, Appellee, v. J. A. DODDS & SONS, a partnership, Appellant.

No. 50329.

Supreme Court of Iowa.

Aug. 15, 1961.

Rehearing Denied Oct. 17, 1961.

Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, for appellant.

Alfred E. Hughes, Dubuque, for appellee.

SNELL, Justice.

This is an action at law for alleged negligence brought in behalf of an unemancipated minor child against a partnership as the sole defendant. The child's father was a partner in defendant partnership at the time of the accident. The petition charges negligence on the part of two partners and two employees of the partnership. None of the individual partners is made a party to this action. The father of the unemancipated minor is one of the partners and is one of the four persons alleged to have been negligent.

Defendant partnership moved for judgment on the pleadings on the grounds that an unemancipated minor child cannot bring an action for negligence against a partnership in which his father is a member.

The trial court overruled the motion, holding that the partnership entity was not immune from suit because of the relationship existing between the child and one of the partners. From this interlocutory ruling of the trial court, we granted this appeal. The question presented is the correctness of the trial court's ruling on this one proposition.

Defendant-appellant argues two points. First, that an unemancipated minor child cannot maintain an action against his parent to recover damages for negligence.

While there is respectable and substantial authority in other jurisdictions sustaining the position of appellant in this particular, we do not find that the question has been determined in Iowa. In view of our conclusion on the second proposition, we do not find it necessary to consider the proposition here and express no opinion thereon.

Assuming for the purpose of this case, but not deciding, that an unemancipated minor cannot maintain an action against his parent for negligence, the real and determinative issue is the second proposition urged by defendant that a partnership has no liability for negligent injury of an unemancipated minor child of one of the partners.

I. 68 C.J.S. Partnership § 67, says: 'There is a considerable conflict of authority as to whether or not a partnership is a legal entity separate and distinct from the individuals who compose it. In a large number of jurisdictions a partnership is not regarded as strictly a legal entity distinct from the individuals composing it and having an independent existence; or as a person, either natural or artificial; or as a being or legal being. In other jurisdictions a partnership is regarded as an entity separate and apart from its members * * *.'

40 Am.Jur., Partnership, section 18, says: 'There has been much discussion both by the courts and by text writers of the question whether a partnership has any legal entity distinct from the persons or members who comprise it, and considerable differences of opinion are reflected by the authorities. * * *'

State v. Haesemeyer, 248 Iowa 154, 162, 79 N.W.2d 755, 760, says: 'There seems to be a growing tendency of courts to adopt the view which has long prevailed in Iowa that a partnership is a legal entity distinct from its members. (citation)'

The law in Iowa is well settled. In Rubio Savings Bank of Brighton v. Acme Farm Products Co., 240 Iowa 547, 37 N.W.2d 16, 21, 9 A.L.R.2d 459, it is said: 'In Iowa a partnership is a legal entity.' In Soursos v. Mason City, 230 Iowa 157, 296 N.W. 807, 808, it is said: 'In Iowa a partnership is a legal entity district from its members. This is too well settled to require discussion. (citation)'

II. Under the Uniform Partnership Act, adopted in many jurisdictions but not in Iowa, the partnership is liable to the same extent as the partner for a tort committed by a partner in the ordinary course of business, and all partners are liable jointly and severally for such tort chargeable to the partnership. It should be noted that the cases from other jurisdictions relied upon by defendant-appellant generally arose in states where the Uniform Partnership Act has been adopted.

The case of Karalis v. Karalis, 213 Minn. 31, 4 N.W.2d 632, was an action brought against the partners individually and as copartners. The injury was caused by the plaintiff's husband driving a partnership truck, and under the Uniform Partnership Act, which is a part of the law of Minnesota, plaintiff could not recover.

The case of Belleson v. Skilbeck, 185 Minn. 537, 242 N.W. 1, was an action in behalf of a child who was injured while riding with the father. The case holds that the Uniform Act makes the liability of a partner no greater and no less than the liability of the one causing the injury.

The case of Caplan v. Caplan, 268, N.Y. 445, 198 N.E. 23, 101 A.L.R. 1223, says that a partnership is not a separate entity. This case was also under the Uniform Act.

The case of David v. David, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100, also decided under the Uniform Act, says that the status of a partnership as an independent entity is limited and incomplete.

The case of Aboussie v....