Phillips v. Cook

• Decision Date: 08 June 1965
• Docket Number: No. 281,281
• Citation: 210 A.2d 743,239 Md. 215
• Parties: Daniel PHILLIPS, etc. v. Delores COOK et al.
• Court: Maryland Court of Appeals

Page 215

239 Md. 215

210 A.2d 743

Daniel PHILLIPS, etc. v. Delores COOK et al.

No. 281.

Court of Appeals of Maryland.

June 8, 1965.

Frederick J. Green, Jr. and C. MacNair Speed, Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellant.

Everett L. Buckmaster, Baltimore (George W. White, Jr., Samuel D. Hill and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellees.

Argued April 8, 1965 before HAMMOND, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.

Reargued April 29, 1965 before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

MARBURY, Judge.

This is an appeal by Daniel Phillips individually, and trading as 'Dan's Used Cars', one of the defendants below, from a judgment in favor of Delores Cook and Marshall Cook, her husband, plaintiffs below, entered upon the verdict of a jury in favor of the plaintiffs against the defendants, Isadore Harris and Daniel Phillips, individually and as co-partners trading as Dan's Used Cars, in the Superior Court of Baltimore City. The verdict was rendered in an action by the Cooks to recover damages for injuries sustained by them as a result of a collision involving a partnership automobile operated by Harris and bearing dealer plates issued to Dan's Used Cars by the Department of Motor Vehicles.

The Cooks sued Harris and Phillips, individually, and as co-partners trading as Dan's Used Cars. The accident in question occurred on January 7, 1960, at about 6:50 p. m., when a partnership automobile operated by Harris struck the rear of a vehicle driven by one Smith, which in turn hit an automobile operated by Delores Cook, at the intersection of Reisterstown Road and Quantico Avenue in Baltimore. Harris was on his way home from the used car lot when the accident occurred. He was using the most direct route from the partnership lot and was only five blocks from his home at the time of the incident.

In October 1959, Harris and Phillips entered into a partnership on an equal basis under the name of 'Dan's Used Cars' for the purpose of buying and selling used automobiles. Phillips owned the lot and a gas station adjacent to it. He went into the partnership with Harris because the latter had the experience and money which he did not have to put into the business. This partnership agreement was oral and it was agreed between the partners that each would have an equal voice in the conduct and management of the business.

Neither of the partners owned a personal automobile or had one titled in his individual name. It was agreed as a part of the partnership arrangement that Harris would use a partnership vehicle for transportation to and from his home. Under this agreement, he was authorized to demonstrate and sell such automobiles, call on dealers for the purpose of seeing and purchasing used cars, or go to the Department of Motor Vehicles on partnership business after leaving the lot in the evening and before returning the next day. Both Harris and Phillips could use a partnership automobile as desired. Such vehicles were for sale at any time during the day or night and at various times and places they had 'for sale' signs on the windshields. Harris had no regular hours to report to the used car lot but could come and go as he saw fit. Phillips testified that it was essential that Harris have a partnership automobile for his transportation to and from his home, and that it was the most practical way to operate. It is also significant to note that both Harris and Phillips testified at the trial that each paid for the gasoline used in the partnership automobiles they drove. However, Phillips said at the time of the taking of his deposition, which was admitted in evidence, that the gasoline used came out of the used car business and was for cars that were for sale on the lot. He admitted that the Mercury sedan involved in the collision was for sale and had been sitting on the lot. This car was titled in the name of the partnership and Phillips could have used it if he wanted to. After the accident, he objected to Harris using the dealer's tags because 'he didn't want to get in any more accidents.' About a week later, the partnership was terminated and Harris left the business.

Harris did not appeal. The questions involved in Phillips' appeal are: I, did the lower court err in refusing to grant appellant's motions for a directed verdict in that there was no legally sufficient evidence from which a jury could find that Harris was acting within the scope of the partnership business arrangement and for its benefit; II, was there prejudicial error in the trial court's charge to the jury with respect to the use of the automobile and the effect of the presumption arising out of its ownership by the partnership; and III, did the lower court err in refusing to direct a verdict as to appellant individually.

I

If there was any evidence, no matter how slight, viewed in the light most favorable to appellees, that Harris, in using the partnership vehicle, was acting within the scope of the partnership agreement and business, i. e., the use was of some benefit or incidental to the partnership arrangement, then the question was for the jury's determination. Appellant contends that because Harris was on his way home from the used car lot at the time of the accident, the evidence was insufficient to support a finding by the jury that he was acting within the scope of the partnership arrangement or that such use of the vehicle was of benefit to the partnership.

In a case involving a partnership, the contract of partnership constitutes all of its members as agents of each other and each partner acts both as a principal and as the agent of the others in regard to acts done within the apparent scope of the business, purpose and agreement of the partnership or for its benefit. It is clear that the partnership is bound by the partner's wrongful act if done within the scope of the partnership's business. Code (1957), Article 73A, Section 13 provides:

'Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.' ¹

The test of the liability of the partnership and of its members for the torts of any one partner is whether the wrongful act was done within what may reasonably be found to be the scope of the business of the partnership and for its benefit. The extent of the authority of a partner is determined essentially by the same principles as those which measure the scope of an agent's authority. Schloss v. Silverman, 172 Md. 632, 192 A. 343. Partnership cases may differ from principal and agent and master and servant relationships because in the non-partnership cases, the element of control or authorization is important. This is not so in the case of a partnership for a partner is also a principal, and control and authorization are generally within his power to exercise.

In the past, we have held both in workmen's compensation cases and others that where an employer authorizes or furnishes the employee transportation to and from his work as an incident to his employment, or as a benefit to the employer, the employee is considered in the course of his employment when so traveling. This is so whether it be to his place to eat, sleep or to the employee's home. In Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 118 A.2d 486, where an employer furnished an employee free transportation to and from his work as an incident to his employment, we held that an injury sustained by the employee during such transportation arose out of and in the course of his employment. In Beam Motor Car Co. v. Loewer, 131 Md. 552, 102 A. 908, an employee told his employer that he thought he might be able to sell one of its automobiles, and while on his way home and before showing it to the prospective customer, he became involved in an accident. We held that the question of whether the employee was acting in the scope of his employment was for the jury. See also Scott v. James Gibbons Co., 192 Md. 319, 64 A.2d 117, where an employee was going to a place to sleep; and McDowell Etc. v. Magazine Service, 164 Md. 170, 164 A. 148, where an employee was going to get his lunch. Other jurisdictions have held that the question of agency or scope of employment is for the jury where the use of a motor vehicle by an employee or agent to go to and from the place of his employment, to his home or to get his meals, is dictated by the nature of the services to be performed, part of the contract of employment, or whether such use is beneficial to both principal and agent or master and servant. Ely v. Rice Bros., 26 Tenn.App. 19, 167 S.W.2d 355; Randall Insurance, Inc. v. O'Neill, 258 N.C. 169, 128 S.E.2d 239; Merwin v. Kellems, 78 So.2d 865 (Fla.).

Here, the fact that the defendant partners were in the used car business; that the very vehicle involved in the accident was one of the partnership assets for sale at all times, day or night, at any location; that Harris was on call by Phillips or customers at his home--he went back to the lot two or three times after going home; that he had no set time and worked irregular hours, coupled with the fact that he frequently stopped to conduct partnership business on the way to and from the lot; drove partnership vehicles to the Department of Motor Vehicles, and to dealers in Baltimore to view and buy used cars while on his way to or from his home; that one of the elements of the partnership arrangement was that each partner could have full use of the vehicles; that the use of the automobile by Harris for transportation to and from his home was admittedly 'essential' to the partnership arrangement and the most practical...