Klotz v. Tru-Fruit Distributors

• Court: Court of Appeal of Louisiana
• Writing for the Court: JANVIER, Judge.
• Citation: Klotz v. Tru-Fruit Distributors, 173 So. 592 (La. App. 1937)
• Decision Date: 19 April 1937
• Docket Number: 16636
• Parties: KLOTZ et al. v. TRU-FRUIT DISTRIBUTORS et al

173 So. 592

KLOTZ et al. v. TRU-FRUIT DISTRIBUTORS et al

No. 16636

Court of Appeal of Louisiana, Orleans.

April 19, 1937

Rehearing denied May 17, 1937. Writ of certiorari refused June 21, 1937.

Richard A. Dowling, of New Orleans, for appellants.

Harry McEnerny, Jr., of New Orleans, for appellees.

OPINION

JANVIER Judge.

This is an action in tort. Mr. and Mrs. Albert Lee Klotz seek recovery for the death of their minor son, Thomas Clifford Klotz, who died as the result of being run over by the right rear wheel of a motor-truck belonging to Davis Brothers, a partnership, the boy, according to plaintiff's petition, having been knocked from a bicycle on which he was riding by a door of another parked truck belonging to Tru-Fruit Distributors, also a partnership, when the said door was suddenly and negligently opened just as the boy on the bicycle reached a position alongside the parked truck. Solidary judgment was sought against Davis Brothers and the individual members of that commercial partnership and also against Tru-Fruit Distributors, also a commercial partnership, and its individual members, Brooks Morgan, at that time a resident of this city, and Donald Morgan, who was and is a resident and citizen of the state of Florida, and who has not been served personally with citation. Davis Brothers and the individual members of that commercial house have, for $ 500, effected a compromise settlement with plaintiffs, who, in the compromise, as they are authorized by law to do, have reserved all of their rights against the other defendants. Therefore, we have no longer any concern with the claim against Davis Brothers except to take into consideration the amount paid by them in compromise, if it becomes necessary in assessing the remainder of the damage against any of the other defendants.

Tru-Fruit Distributors, though domiciled in the state of Florida, was at the time doing business in New Orleans and was represented here by Brooks Morgan, one of the partners. The record shows that citation of the partnership, Tru-Fruit Distributors, was made "by personal service on Brooks Morgan, member of firm" and that the citation directed to Brooks Morgan was served on him "in person." But we find in the record no return showing that citation was served here or elsewhere on Donald Morgan, and counsel concede that no such service of citation was made. They maintain, however, first, that no service of citation on him was necessary, since he was a member of the commercial partnership on which citation was properly served, and, second, that he, by voluntarily appearing to challenge the jurisdiction of the courts of Louisiana, has waived his right to contend that he was not properly brought into court. When citation was served on Brooks Morgan and on the partnership, both of these defendants and also Donald Morgan filed an exception to the jurisdiction of the court ratione personae, basing the exception on the allegation that "your exceptors are not residents nor domiciled in the City of New Orleans or in the State of Louisiana, but are residents and citizens of the City of Tampa, State of Florida," and it is this appearance which counsel for plaintiffs argue constitutes a waiver by Donald Morgan of his right to object to being brought into court here.

The pleas to the jurisdiction were all overruled, and, after trial on the merits, solidary judgment was rendered against Tru-Fruit Distributors and the individual partners for $ 5,500, with interest and costs. All have appealed.

That a commercial partnership, doing business here, though domiciled elsewhere, may be sued here, we entertain no doubt at all. Paragraph 2 of article 165 of our Code of Practice provides that: "Partnership. In matters relative to partnership, as long as the partnership continues, in all suits concerning it the parties must be cited to appear before the tribunal of the place where it is established, or if there are several establishments, before that of the place where the obligation was entered into." Our Supreme Court, in Rester v. Moody & Stewart, 172 La. 510, 134 So. 690, 691, said: "The contractors, Moody & Stewart, compose a partnership which has its domicile in the state of Mississippi. But it came to Washington parish and there entered into a contract to build a road in that parish, and when this suit was filed the partnership was in that parish, where the suit was brought, and service was made on J. O. Stewart, one of its members. The suit was properly brought against the partnership in Washington parish."

Since the suit against the partnership might be brought in this state and in the parish in which the act on which the action was founded was committed, it next becomes necessary to consider whether service on one of the members of the partnership was sufficient to bring the partnership into court, and an affirmative answer to that question is found in paragraph 4 of section 1 of Act No. 179 of 1918, which reads as follows: "Process directed to a commercial partnership may be made personally upon any member of the partnership wherever found in the parish."

In the Rester Case, from which we have already quoted, the Supreme Court referred to the statute of 1916 and said that, as a result, the defendant partnership was properly brought into court by service of citation "on J. O. Stewart, one of its members."

That Brooks Morgan may also be sued here, since he was found and served here, is equally obvious, for, since he is a member of a commercial partnership and, with his partners, is solidarily liable for the partnership debts, he may be sued with the partnership wherever it may be sued if citation may be made upon him there.

But, whether the other party, Donald Morgan, neither domiciled nor found here, may be personally and individually brought into court because of his being one of the members of a commercial partnership which is sued here, is entirely a different question. It is conceded, of course, that if the partnership itself may be sued here, his interest therein may be affected by a judgment against it. But the contention is that, separate and apart from his interest in the partnership, there may not be a personal judgment against him, since the courts of this state have not obtained and cannot acquire jurisdiction over him in personam.

Conceding that, ordinarily, a defendant may be sued only at his domicile, plaintiffs maintain that, because of the provisions of paragraphs 2 and 6 of article 165 of our Code of Practice, a member of a commercial partnership may be sued wherever citation may be had upon the partnership itself. Paragraph 2 we have already quoted. Paragraph 6 reads as follows: "Joint or Solidary Obligors. When the defendants are joint or solidary obligors, they may be cited at the domicile of any of them."

It is true that the defendant partnership is a commercial one and that, therefore, the individuals who compose it are solidarily liable for its obligations and also that the tort which created the "obligation" was committed in the city of New Orleans. But we cannot be persuaded that, so far as the individual members of the partnership are concerned, that paragraph of the article of the Code of Practice can be given effect beyond the borders of the state of Louisiana. Counsel, we think, confuse "venue" of a suit against a commercial partnership and its members with the "jurisdiction" of the courts of the state. A partnership, as has often been said, is a legal entity separate and apart from the members which compose it. "Under the civil law, which prevails in this state, a partnership is a legal entity entirely separate and distinct from the persons who compose it, and may have its own creditors and debtors to the same extent as the individual partners." E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898, 899. "Under the law of Louisiana a commercial partnership is an entity, capable of being sued, is brought into court as defendant by service of citation upon one of its members, and while the ultimate liability of the partners is in solido, i. e., joint and several, they, during the life of the partnership, cannot be charged individually except through the partnership; that is, during the life of the partnership a partner is, like a corporator in a corporation, liable and made to respond individually only through a judgment against the intellectual being of which he is a component part." Liverpool, B. & R. P.N. Co. v. Agar (C. C.) 14 F. 615. See, also, Newman v. Eldridge, 107 La. 315, 31 So. 688; Stothart v. Hardie & Co., 110 La. 696, 700, 34 So. 740; Smith v. McMicken, 3 La.Ann. 319, 322.

Therefore, when the partnership came into Louisiana to do business, it subjected itself to the jurisdiction of the Louisiana courts, and, having done so, it became subject to Louisiana law and to article 165 of the Code of Practice to the extent that that article controls the "venue" of suits against persons within its borders. But the individual members of the partnership, except those within the state, did not, except to the extent of their interest in the partnership, subject themselves to the jurisdiction of the Louisiana courts, and, therefore, to extend the provisions of the article so as to interpret it as granting the right to plaintiffs to sue, personally, individual members of foreign partnerships, which members may not be found within the borders of the state, and to render personal judgments against them would, we think, be to deprive those individuals of their right to due process of law, for, " following the decision by the United States Supreme Court in Pennoyer v. Neff (95 U.S. 714, 24 L.Ed. 565), it is now well settled (as it well must be) that the courts of this State have no jurisdiction to entertain...