Idom v. Weeks & Russell, 23686

• Court: Mississippi Supreme Court
• Writing for the Court: SYKES, J.
• Citation: 135 Miss. 65,99 So. 761
• Decision Date: 07 April 1924
• Docket Number: 23686
• Parties: IDOM et al. v. WEEKS & RUSSELL. [*]

99 So. 761

135 Miss. 65

IDOM et al.
v.
WEEKS & RUSSELL. ^[*]

No. 23686

Supreme Court of Mississippi

April 7, 1924

(En Banc.) January 1, 1920

1. PARTNERSHIP. Partnership and individual members liable for tort of partner committed within scope of partnership business.

If a tort be committed by one partner while engaged in a transaction within the scope of the partnership business, and such tort be committed in furtherance of the interest of the partnership, the partnership and the individual members thereof will be liable.

2. PARTNERSHIP. Neither partnership nor members not committing tort liable when committed by partner outside scope of partnership business and not ratified.

Neither a partnership nor the members not committing the tort are liable for a tort committed by one partner in a transaction outside of the partnership business, unless the act which constituted the tort was authorized by the members of the partnership or subsequently ratified by them; the act itself having been done in their behalf and interest.

3. PARTNERSHIP. Liability of partner shooting person mistaken for burglar, without knowledge or consent of other partner, held for jury; partner not liable for shooting person mistaken for burglar by other partner not within scope of business.

Where a partnership, consisting of two members of the firm, is engaged in the retail drug business, and, after business hours, when the store is closed, one partner, with companions, secretes himself in the store for the purpose of trying to apprehend burglars, and willfully or negligently shoots a person at the front door of the store whom he mistakes for a burglar, without the knowledge or consent of his partner, the liability of the partner doing the shooting is a question of fact for the jury. The shooting was not [135 Miss. 66] done within the scope of the partnership business or in furtherance of the interest of the partnership; therefore the other partner is not liable.

ETHRIDGE, J., and SMITH, C. J., dissenting in part.

HON. THOMAS L. LAMB, Judge.

APPEAL from circuit court of Choctaw county, HON. THOMAS L. LAMB, Judge.

Suit by Mrs. Clara May Idom by next friend and another against Weeks & Russell. From a judgment for defendants, plaintiffs appeal. Affirmed as to Weeks, and reversed and remanded as to Russell.

Affirmed in part and reversed and remanded in part.

W. G. Boyett, Harry M. Bryan and J. E. McCall, for appellants.

This suit was instituted in the circuit court by Mrs. Clara May Idom and her infant daughter by next friend, W. E. West, to recover damages for the death of their husband and father. Dr. J. D. Weeks and Knox Russell, owning and operating a drug business in the town of Ackerman under the trade and firm name of Weeks & Russell were made defendants. Plaintiffs alleged that decedent who was a night operator on duty at the Illinois Central Railroad Depot came to his death at the hands of Knox Russell in the early morning of June 21, 1920. Seeing a light flash off and on in the drug store of appellees and believing burglars were in the store Idom, together with two companions left the depot about seventy yards away, for the purpose of making an investigation. While on the sidewalk in front of the store, Idom and one of his companions were shot down without warning by Knox Russell, one of the appellees, who was concealed in the store. One died instantly while the other (Idom) lived a few hours.

Defendants moved for a peremptory instruction at the conclusion of appellant's testimony. The lower court [135 Miss. 67] granted this peremptory instruction upon the theory that the act of one of the partners, Russell, could not render the other, Dr. Weeks, liable because not committed in furtherance of the partnership business and no expressly authorized by the said Weeks. Under the court's ruling, both partners, including Russell, who committed the act, were held not liable. Upon what theory the court granted the instruction as to Russell we are unable to determine. Surely, there was ample proof of willful and wanton disregard of the rights of appellants' decedent so far as Russell is concerned and this was sufficient upon which to make up the issue for the jury to pass upon.

The declaration charged that Russell "on behalf of the partnership J. D. Weeks and Knox Russell, defendants, and in furtherance of the said scheme to capture the said burglars, and to guard the said partnership property from further depredation and loss and to further promote the firm's business and to care for and preserve its property, the said Knox Russell, in his own capacity as a partner aforesaid, and in behalf of his co-partner and with his knowledge, consent, approval and approbation, concealed himself in the said store of the said partnership on the night of the said 20th of June, heavily armed with a gun or pistol," etc.

It is our contention that the "knowledge, consent, approval and approbation" of the defendant Weeks need not have been express but that it could be implied from the circumstances of the case; that the act of guarding the property of the partnership and preserving the corpus of the firm's business was in the course of that business and was for the purpose of preventing a loss of goods (assets) by theft or otherwise just as much as a prudent exercise of buying skill, or selling ability, prevented loss on accumulated profits.

On the question of liability of one partner for tortious acts of another we cite the following authorities: "A firm of butchers is liable to the owner of a dog which died from eating poisoned meat which one member of the firm [135 Miss. 68] in furtherance of the partnership business negligently caused to be placed where dogs might be reasonably expected to get it." Dudley v. Love, 60 Mo.App. 420.

Partners are also liable for statements made by one in derogation of a competitor and in aid of their own business. Mfg. Company v. Perkins, 78 Mich. 1, 43 N.W. 1073.

A partnership is liable as such in an action for malicious prosecution when the same was instituted in furtherance of the partnership business. Page v. Banking Company, 111 Ga. 73, 51 L. R. A. 463.

Forgery by one partner for the firm benefit subjects his copartner to liability therefor. Bank v. Gore, 14 Mass. 75, 8 Am. Dec. 83.

It was held in Stockwell v. United States, 20 L.Ed. 491, that a firm was liable for penalty although but one partner was guilty of misconduct.

In England, Hamlin v. Houston, 1 K. B. 81, 51 Wkly. Rep. 99, a firm was held liable for the act of a partner who obtained information respecting the business of a competing firm by bribing one of its clerks. See, also, Page v. Citizens Banking Company, 51 L. R. A. 463, and note.

We contend that the question as to whether or not the act complained of in this case was within the scope of the partnership business as it is carried on, is a question for the jury and not a question of law for the court. 30 Cyc. 476; Lee v. Guice, 13 S. & M. 668; Henry Mfg. Co. v. Perkins et al., 43 N.W. 1073.

Two Mississippi cases fully support our contention that in the case at bar the defendant Weeks was liable with Russell for the latter's act. Robertson & Patterson v. Goings, 63 Miss. 500; Heirn v. McCaughan, 32 Miss. 18. See, also, Cooley on Torts, section 40; Gilmore on Partnership, 237-238; New Orleans, etc., Ry. Co. v. Ablation, 38 Miss. 277; Barker v. Railroad Co., 85 Miss. 426 and 87 Miss. 273. The last two cases are cited because of the [135 Miss. 69] fact that, as stated above, the general principles of agency are applied to determine partnership.

Certain it is that a duty to protect firm property is involved in the very conception of a partnership whose business it is to sell goods at a profit. The above is sound as we have shown by the authorities herein cited.

But, aside from this, we earnestly and vigorously maintain that, if by any theory of the case Weeks could be absolved from liability, there was no ground for the court to refuse to submit to the jury the question of Russell's liability to decedent's wife and child for his wrongful death.

The record shows that: (1) Appellants' intestate was on the public side walk of Ackerman. (2) He was engaged in a lawful and laudable undertaking, to-wit, investigating an unusual light in defendants' drug store in the early morning hours, without any knowledge that one of them was concealed therein. (3) Further than merely shaking the door to said store to see if it had been tampered with, he did nothing which would cause any reasonable man to believe that there was necessity for using firearms to repel an intrusion. (4) Appellee Russell shot down Idom and a companion without any warning whatever. (5) Russell knew that the town of Ackerman was generally aroused over reported burglaries and that many citizens were out that night discussing the matter of protection and making plans therefor. How far can one go to repel an invasion or to prevent deprivation of property? Certainly, he would be held within reasonable grounds. See 5 C. J. 632, 113, 47 P. 284; Newson v. Russell, 133 Ky. 29, 117 S.W. 305, 22 L. R. A. (N. S.) 724.

Flowers & Brown, C. L. Hester and J. L. Seawright, for appellees.

There is no proper theory on which Dr. Weeks could be held liable for the alleged act of Russell. They were [135 Miss. 70] engaged as partners in carrying on a general drug store business but the partnership agreement did not provide nor contemplate that the partners should perform police duty. Neither did the nature of the business in which they were engaged require this of the members of the partnership. Nor can it be said that the alleged act of Russell was one done in the scope of the business of the partnership or as incident to its business. The undertaking of Russell, being that of performing police duty, was foreign to the business in which he was engaged as partner with Weeks, being...