Hess v. Lowrey

• Decision Date: 07 January 1890
• Docket Number: 13,516
• Citation: 23 N.E. 156,122 Ind. 225
• Parties: Hess v. Lowrey
• Court: Indiana Supreme Court

23 N.E. 156

122 Ind. 225

Hess v. Lowrey

No. 13,516

Supreme Court of Indiana

January 7, 1890

Petition for a Rehearing Overruled Feb. 20, 1890.

From the Fayette Circuit Court.

The judgment is affirmed, with costs.

J. H Mellett, E. H. Bundy, J. Brown and W. A. Brown, for appellant.

T. B Redding, D. W. Chambers, J. S. Hedges and C. Roehl, for appellee.

OPINION

Mitchell, C. J.

This action was originally instituted by Isaac Lowrey against Luther W. and Frank C. Hess, to recover damages for an injury sustained to the person of the plaintiff, alleged to have been caused by the negligent and unskilful manner in which the defendants, who were partners engaged in the practice of medicine and surgery, reset and treated the plaintiff's shoulder, which had been dislocated.Pending the action Luther W. Hess died, and the case proceeded to judgment against his personal representative and surviving partner jointly.On appeal to this court the judgment was reversed.Boor v. Lowrey,103 Ind. 468(53 Am. Rep. 519, 3 N.E. 151, and note.)On the former appeal we arrived at the conclusion that even though the action was in form ex contractu, since the principal or only damages sought to be recovered grew out of an injury to the person, the action would not survive against the personal representative of a deceased partner.Hegerich v. Keddie,99 N.Y. 258, 1 N.E. 787;Ott v. Kaufman,68 Md. 56, 11 A. 580.The nature of the damage sued for, and not the nature of its cause, determines whether or not the action survives.Cutter v. Hamlen,147 Mass. 471;1 Chitty Pl. 101, 18 N.E. 397.

The case is here on a second appeal, and the question is now presented whether or not, the action having abated against the estate of the deceased partner, it can be prosecuted to judgment against the survivor?

That each partner is the agent of the firm while engaged in the prosecution of the partnership business, and that the firm is liable for the torts of each, if committed within the scope of his agency, appears to be well settled.Champlin v. Laytin,18 Wend. 407(31 Am. Dec. 382);Tucker v. Cole,54 Wis. 539, 11 N.W. 703;Fletcher v. Ingram,46 Wis. 191, 50 N.W. 424;Taylor v. Jones,42 N.H. 25;Schwabacker v. Riddle,84 Ill. 517; Story Part., sections 107,166; 1 Bates Part., section 461."It follows from the principles of agency, coupled with the doctrine that each partner is the agent of the firm, for the purpose of carrying on its business in the usual way, that an ordinary partnership is liable in damages for the negligence of any one of its members in conducting the business of the partnership."Lindley Part. 299.Thus in Hyrne v. Erwin,23 S.C. 226(55 Am. Rep. 15), which was an action against two physicians for an injury resulting from the negligent and unskilful setting of a broken arm, it was held that the act of one, within the scope of the partnership business, was the act of each and all, as fully as if each was present participating in all that was done, and that each partner guarantees that the one in charge shall display reasonable care, diligence and skill, and that the failure of one is the failure of all.

It is contended, however, that if the appellant was liable at all, he was only liable jointly with his deceased partner, and that the action having abated as to the deceased partner, the case falls within the rule that where one or more of the joint plaintiffs or joint defendants dies, the action shall not thereby be abated if the cause of action survives, but if the cause of action is one that does not survive, then the death of either joint plaintiff or joint defendant abates the whole action.Meek v. Ruffner,2 Blackf. 23;Williams v. Kent,15 Wend. 360.

The general rule established by the cases is, that where several persons jointly commit a tort, for which an action in form ex delicto may be maintained, without reference to any contract relation between the parties, the plaintiff has his election to sue all or any one of those engaged in the wrongful act, even though the existence of a contract may have been the occasion or furnished the opportunity to commit the act complained of.But where the action is founded on a joint contract, and is, in substance, whatever its form may be, to recover damages for a breach of the contract upon which the action is predicated, all those jointly liable must be sued in case all are alive and within the jurisdiction of the court.Low v. Mumford,14 Johns. 426;Weall v. King,12 East, 452;Whittaker v. Collins,34 Minn. 299; 1 Lindley Part. 482, 25 N.W. 632; Bishop Non-Contract Law, section 521; Chitty Pl. 469.In a case like the present where the gravamen of the action is the breach of a contract, by the terms of which two persons undertook, as partners, to reset the plaintiff's shoulder, and to treat him with the skill and diligence ordinarily displayed by competent surgeons, and the action is not maintainable without referring to the contract, it may well be, even though the action be laid in tort, that the non-joinder of one of them would be ground for a plea in abatement.Collyer Part., section 732; Dicey Parties, 455.But a plea in abatement for non-joinder of parties must, in order to be good, show that the person alleged to be jointly liable, and not sued, is living and subject to the process of the court.Dillon v. State Bank,6 Blackf. 5;Wilson v. State,6 Blackf. 212;Bragg v. Wetzel,5 Blackf. 95;Levi v. Haverstick,51 Ind. 236;Ferguson v. State,ex rel., 90 Ind. 38; Collyer Part., section 741;Merriman v. Barker,121 Ind. 74, 22 N.E. 992.If in an action against partners to recover damages for a personal injury growing out of the breach of a contract, it is necessary, as in ordinary actions ex contractu, to join all the partners, it must follow that upon the death of one, notwithstanding the action may abate as to the deceased partner, the rule applicable to ordinary actions upon contracts against partners must obtain.At the common law the contract of partners was always treated as a joint agreement, but the firm creditors could not proceed against the estate of a deceased partner, because the death of one of the partners extinguished the contract as to him, leaving it in force as the separate engagement of the survivor.The legal remedy of the creditor was thereafter confined exclusively to the surviving partner, except as the common law was modified by statutes, or by the principles of equity.Sherman v. Kreul,42 Wis. 33.

The right to sue for claims due the firm, as well as the liability to be sued for claims against the firm, devolves exclusively upon the surviving partner.Meek v. Ruffner, supra;McLain v. Carson,4 Ark. 164 (37 Am. Dec. 777;Childs v. Hyde,10 Iowa 294(77 Am. Dec. 113);Emanuel v. Bird,19 Ala. 596(54 Am. Dec. 200); 2 Lindley Part. 665.

Upon the death of one partner the creditor has a right to collect his claim at law from the survivor; or if the cause of action survives against the personal representative, to proceed in the manner pointed out by the statute against the estate of the deceased partner.Ralston v. Moore,105 Ind. 243, 4 N.E. 673;Kimball v. Whitney,15 Ind. 280;Gere v. Clarke,6 Hill, 350.

If a partner dies pending an action against the firm the death being suggested on the record, the action does not abate, but may proceed to judgment against the surviving partner, unless the cause of action dies, not only as against the personal representative of the deceased partner, but as against the surviving partner also.Williams v. Kent, supra; Collyer Part., section 727; Pom.Rem.Rights, sections 250,251; Bates Part. section 1055.When the damages sued for arise out of an injury to the person of the plaintiff, the cause of action dies with the person of either party; but the cause of action dies only so far as it affects the the liability of the decedent, or his personal representative.Neither by the common law, nor under the statute, does the cause of action die as to a surviving partner, or defendant, who, as we have seen, remains liable for all claims against the firm.King v. Bell,13 Neb. 409, 14 N.W. 141; 8 Wait Actions and Def. 502.

While the members of the firm were all alive each was liable in solido as principal, the firm being, in law, a single entity; upon the death of one partner his liability was extinguished, but the surviving partner as the sole representative of the firm, continued liable.Shale v. Schantz,35 Hun 622.

It is only where the cause of action does not survive in favor of, or against either of the joint plaintiffs or defendants, that the death of one abates the whole action.

If the action is, as doubtless it should be, regarded as a suit quasi ex contractu, for damages for an injury to the person occasioned by the breach of a joint contract, the death of one of the defendants simply severed the joint liability and extinguished the claim against the decedent, while it continued in full force as to the survivor.If the action is regarded as purely in tort, as where the injury was wilful and intentional, then the liability of the defendants may be joint and several, and the death of one does not abate the action as to the other.Collyer Part. (6th ed.), p. 1079, note.The death of one partner in nowise affects the liability of the survivor, who, upon the happening of that event, becomes individually liable to make good the joint undertaking of both.

Ordinarily, in actions ex delicto, where the liability arises from the misconduct or wrongful act of the parties, each is liable for all the consequences, and there is no right to enforce contribution, but this rule does not apply between partners unless the liability resulted from a meditated or wilful wrong intentionally inflicted by the one seeking...