Davison v. Farr

• Decision Date: 02 December 1954
• Docket Number: No. 7257,7257
• Citation: 273 S.W.2d 500
• Parties: O. B. DAVISON, Plaintiff, v. Alvin FARR, Deeb Motors Company and California Car Company, Defendants.
• Court: Missouri Court of Appeals

Page 500

273 S.W.2d 500

O. B. DAVISON, Plaintiff, v. Alvin FARR, Deeb Motors Company and California Car Company Defendants.

No. 7257.

Springfield Court of Appeals, Missouri.

Dec. 2, 1954.

Jim Poynor, Joplin, for defendant-appellant, California Car Co.

Seiler, Blanchard & Van Fleet, Joplin, for plaintiff-respondent.

STONE, Judge.

In this action for damages resulting from a collision in Joplin, Missouri, on February 10, 1953, between a 1936 Nash owned and driven by plaintiff and a 1952 Cadillac driven by defendant Farr, plaintiff dismissed as to defendant, Deeb Motors Company (hereinafter referred to as Deeb Motors), at the close of plaintiff's case and, upon the jury verdict thereafter returned, had judgment for $1,050 against defendants Farr and California Car Company (hereinafter referred to as California Car), from which California Car alone appeals. Defendants Farr and Deeb Motors were not represented upon trial, and the primary issue between plaintiff and defendant California Car was as to whether California Car might be held under the doctrine of respondeat superior for the negligence of Farr.

At the outset, we are confronted with the fact that the judgment is clearly void and unenforceable as to defendant California Car. In his petition, plaintiff alleged that 'defendant California Car Company is a California corporation' or 'in the alternative that California Car Company is a fictitious name for an individual doing business under that name, that the full name of the individual is unknown to this plaintiff.' Interrogatories subsequently propounded by plaintiff to California Car were answered under oath by Bernard R. Snyder, who 'declared that he is a partner in the California Car Company, a co-partnership,' and in response to Interrogatory No. 3 named the partners. Plaintiff proceeded to trial on his original petition and, as a part of his case, introduced in evidence not only Interrogatory No. 3 and the answer thereto but also questions and answers from Snyder's deposition likewise showing that California Car is a partnership. The verdict of the jury was 'against the defendants, Ivan Farr and California Car Company'; and the judgment (omitted from the transcript but supplied at our request), after references to 'defendants Alvin Farr and California Car Company,' was that 'plaintiff have and recover of and from the defendants, the sum of $1050.'

It has long been recognized and settled in Missouri that, there being no statutory authorization to the contrary, a partnership cannot be sued in the firm name and that the action must be brought against the individual partners. Haney v. Thomson, 339 Mo. 505, 98 S.W.2d 639, 644(4); Windisch v. Farrow, Mo.App., 159 S.W.2d 392, 394(3); Weldon v. Fisher, 194 Mo.App. 573, 186 S.W. 1153, 1155(2); Moses P. Johnson Machinery Co. v. Watson, 57 Mo.App. 629, 634(3). In this connection, see and compare Van Natta v. Harroun Real Estate Co., 221 Mo. 373, 120 S.W. 738 740(5); Daiprai v. Moberly Fuel & Transfer Co., 359 Mo. 789, 223 S.W.2d 474, 476(2); Clark Estate Co. v. Gentry, 362 Mo. 80, 240 S.W.2d 124, 127(2); Weir v. Metropolitan St. Ry. Co., 126 Mo.App. 471, 103 S.W. 583, 585(3); Ruggles v. International Ass'n, etc., Iron Workers, 331 Mo. 20, 52 S.W.2d 860, 862(5); Newton County Farmers' & Fruit-Growers' Exch. v. Kansas City So. Ry. Co., 326 Mo. 617, 31 S.W.2d 803, 804(2); Aalco Laundry & Cleaning Co. v. Laundry Linen, etc., U. L. No. 366, Mo.App., 115 S.W.2d 89, 90(1). "This rule (that suit can not be maintained against a partnership in its firm name in the absence of actual service on, or appearance by, the individual members of it) rests upon the principle that a firm has no legal existence apart from its members." Haney v. Thomson, supra, 98 S.W.2d loc. cit. 644; Moses P. Johnson Machinery Co. v. Watson, supra, 57 Mo.App. loc. cit. 634. To the same effect, see Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 70 S.W.2d 884, 889; Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, 112. That, in a suit against a partnership in its firm name only, there is no legal entity before the court against which lawful judgment may be rendered, constitutes a fatal defect not waived by failure to object, and a judgment against the partnership in its firm name alone is void. Weldon v. Fisher, supra, 186 S.W. loc. cit. 1155(2); Metropolitan St. Ry. Co. v. Adams Express Co., 145 Mo.App. 371, 130 S.W. 101, 103(6); Aalco Laundry & Cleaning Co. v. Laundry Linen, etc., Local No. 366, Mo.App., 113 S.W.2d 1081, 1082(2); Woerter v. Labowitch & Morris Discount Service, 348 Ill.App. 168, 108 N.E.2d 519.

In the instant case, an answer in the nature of a general denial was filed on behalf of 'the defendants' and a written entry of appearance also was filed, reciting that 'Come now the defendants Alvin Farr, Deebs Motor Company and California Car Company, the defendants herein, and enter their appearance in the above entitled cause,' both pleadings having been signed by an 'Attorney for Defendants.' But, neither the answer nor the entry of appearance purported to be 'that of any individual himself as a partner, or to be authorized for him in that or any other capacity.' Haney v. Thomson, supra, 98 S.W.2d loc. cit. 644(5). There was no service upon, or entry of appearance by, any of the individual partners, and we think it plain that, under the case law in Missouri, the judgment against California Car is void. However, it being apparent that the pertinent facts bearing upon defendant Farr's status at the time of accident and his relationship with his codefendants were not developed fully upon trial, the cause should be remanded to afford plaintiff an opportunity to amend his petition, to bring in additional parties defendant, and to retry the case if he so desires. Cf. East v. McMenamy, Mo., 266 S.W.2d 728, 732(7), and cases there cited; Lipel v. General American Life Ins. Co., Mo.App., 192 S.W.2d 871, 876(8); Talbot v. J. V. Brinkman Co. Bank, 220 Mo.App. 493, 274 S.W. 501.

Since additional evidence may be offered upon retrial, no good purpose would be served by determination of the issue raised on this appeal as to whether plaintiff made a submissible case against California Car; but, in the interest of minimizing the possibility of error upon retrial, it may be helpful to consider the admissibility of Exhibit C, a purported contract between California Car and Farr. This requires a brief statement of facts. California Car is an automobile dealer in Los Angeles, and Deeb Motors is an automobile dealer in Detroit. In answers to interrogatories introduced in evidence, Bernard R. Snyder, a partner in California Car, said that the 1952 Cadillac driven by Farr 'had been purchased by California Car Company but had not been delivered'; that Deeb Motors had 'engaged' Farr to drive the Cadillac 'to California for delivery to California Car'; and that, 'during the time he was driving the * * * 1952 Cadillac * * * from Detroit to California,' Farr was not 'under the supervision and control of California Car' but was under the supervision and control of Deeb Motors. Neither Farr nor any representative of Deeb Motors testified in person or by deposition, and the only testimony concerning the purchase of the Cadillac by California Car was from Snyder's deposition.

Snyder stated that California Car received long distance telephone calls from a Mr. Marvel of Deeb Motors on February 1 and 4, 1953; that he (Snyder) answered the telephone on both occasions and 'listened in' on the conversations between Snyder's father and Mr. Marvel; that the first conversation on February 1 pertained to the purchase by California Car of two Cadillac automobiles; that, in the second conversation on February 4 which pertained to purchase by California Car of the Cadillac involved in the accident of February 10 and another Cadillac, Mr. Marvel of Deeb Motors 'once again quoted the price that he wanted for the cars and my dad told them * * * to send them out and when they arrived, if we found the cars were in the condition that he said they were, we would go ahead and pay for them'; that California Car made no arrangements for delivery of any of the Cadillacs in Los Angeles--'they (Deeb Motors) were to arrange to deliver the car'--'Mr. Marvel said that he would get the cars sent out'; that nothing was said 'about a driver'; that Farr's name was not mentioned...