R.L. Turner Motors v. Hilkey, 6 Div. 487

• Decision Date: 15 April 1954
• Docket Number: 6 Div. 487
• Citation: 260 Ala. 577,72 So.2d 75
• Parties: R. L. TURNER MOTORS v. HILKEY.
• Court: Alabama Supreme Court

Page 75

72 So.2d 75

260 Ala. 577

R. L. TURNER MOTORS v. HILKEY.

6 Div. 487.

Supreme Court of Alabama.

April 15, 1954.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Ingram Beasley, Birmingham, for appellee.

STAKELY, Justice.

Henry W. Hilkey (appellee) filed three separate actions against R. L. Turner Motors, a partnership composed of R. L. Turner and Anna L. Turner (appellant), and R. L. Turner, Anna L. Turner and C. M. Jacobs. In each case there was a verdict against R. L. Turner Motors, a partnership composed of R. L. Turner and Anna L. Turner. In each case a judgment was entered against R. L. Turner Motors, a partnership composed of R. L. Turner and Anna L. Turner, and in favor of each of the individual defendants. The cases were tried on the same evidence, except as we shall show, at one time and the cases are submitted here together on one record on this appeal by agreement. The three separate cases are designated for convenience by the numbers in the court below as follows:

Case No. 25310-X False Imprisonment on February 13, 1951, Judgment $2,000.

Case No. 25311-X Malicious Prosecution on February 14, 1951, Judgment $1,000.

Case No. 25312-X Malicious Prosecution on April 4, 1951, Judgment $2,000.

In each of the cases there was a motion for a new trial, which was overruled by the court.

In view of the points raised on the appeal, a detailed statement of the evidence will not be made. We shall only state the evidence which counsel consider pertinent to these points, as stated in their briefs.

Henry W. Hilkey, appellee, was employed by R. L. Turner Motors, appellant, as a mechanic at the garage owned and operated by R. L. Turner Motor. On or about the 10th day of February, 1951, Henry W. Hilkey purchased from R. L. Turner Motors, an automobile, paying the sum of $100 on the purchase price and agreeing to pay the balance in weekly installments under a conditional sales contract. On the following Monday, which was about February 12, 1951, Henry W. Hilkey left the employment of R. L. Turner Motors, where he had been paid $15 per week for his services, and went to work for the Grayson Lumber Company for $75 or $80 per week. There is testimony introduced by the defendant tending to show that Henry W. Hilkey was planning to leave the State of Alabama with the car to return to his former home in the State of Washington, and further that the radio in the car and tools of the car were missing and could not be located.

On February 13, 1951, police officers of the City of Birmingham went to the home of Henry W. Hilkey after he and his wife had retired and placed him under arrest on a charge of embezzlement. He was arrested and placed in the City Jail of the City of Birmingham at the instance of R. L. Turner, the managing partner of R. L. Turner Motors. He remained in the city jail from 9:29 P.M. of February 13th until 3:40 P.M. of February 14th. The officer causing the defendant to be arrested at the instance of R. L. Turner had an agreement with R. L. Turner that R. L. Turner 'would get a proper warrant the next morning.' The next morning after the arrest and imprisonment, R. L. Turner went to the court house and instead of obtaining a warrant for embezzlement obtained a warrant for using an automobile with a switched license tag.

While the foregoing proceedings were pending Henry W. Hilkey was arrested on another warrant, charging him with grand larceny, which was instigated by R. L. Turner.

While Henry W. Hilkey was incarcerated in the city jail the automobile purchased by him from R. L. Turner Motors and which was parked in front of the home of Henry W. Hilkey was repossessed and carried to a storage garage at the instigation of R. L. Turner. The automobile was never returned to Henry W. Hilkey

On each of the criminal charges against Henry W. Hilkey, Henry W. Hilkey was tried and acquitted.

I. It is a general rule that a tort committed by one partner will not bind the partnership unless it be authorized or ratified or be within the scope of the partnership business. Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L.R.A. 650; Cummings v. S. Funkenstein Co., 17 Ala.App. 7, 81 So. 343. See also 68 C.J.S., Partnership, § 183, p. 638.

In Section 1, Title 43, Code of 1940, it is provided as follows:

'Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing.'

The evidence in the case at bar shows without dispute that R. L. Turner Motors, a partnership composed of R. L. Turner and Anna L. Turner, was engaged in the business of buying, repairing and selling used car automobiles in the City of Birmingham. R. L. Turner was the managing head of the firm. The prosecutions made the basis of the suits at bar were instigated by R. L. Turner and the inference can be clearly drawn that these prosecutions were instigated for the purpose of not allowing Henry W. Hilkey and his car to get beyond the jurisdiction of the Alabama court, so that the car could be repossessed.

In Marks v. Hastings, 101 Ala. 165, 13 So. 297, it is shown that a partnership is responsible for the wrongful act of one of its members committed in the course and for the purpose of transacting the partnership business. It was held in that case that a partner who was absent from the state at the time the tortious act was committed could not be held personally liable, since he was in entire ignorance of and had nothing to do with the tortious act. In that case it was said that a 'prosecution for larceny for goods stolen from the firm is not within the scope of a mercantile partnership.'

Account, however, should be taken of the conduct of certain types of business. The general authority of each partner is to be tested by the nature of the particular business of the partnership and its ordinary usages. Alabama Fertilizer Co. v. Reynolds & Lee, 79 Ala. 497; Little v. Britton, 189 Ala. 10, 66 So. 694. As pointed out by the lower court, the partnership in the present case is engaged in the used car business. It is a matter of common knowledge that this business includes the buying and selling of used cars, the repair of same and most important, the financing and collecting of the installments and the repossessing of the property whenever the debtor becomes in arrears or the property placed in jeopardy. It is evident that when a car is taken beyond the jurisdiction of the state in which the seller lives that the problem of repossessing the car, if necessary, is increased. Under all the circumstances we therefore are of opinion that the partnership in the instant case can by the jury be held liable for the tortious acts of R. L. Turner and that what he did was done in the prosecution of the partnership business. The court was therefore justified in refusing the affirmative charge requested by the defendant in each of the foregoing cases.

II. The original complaint shows the defendants sued to be R. L. Turner and Anna L. Turner, partners trading and doing business under the name of R. L. Turner Motors, R. L. Turner, Anna L. Turner, C. M. Jacobs, R. L. Turner Motors, whose name is otherwise unknown to the plaintiff, whose correct name will be supplied by amendment when ascertained, and John Doe. R. L. Turner Motors, a partnership composed of R. L. Turner and Anna L. Turner, was added by amendment. It will be recalled that the judgment was against R. L. Turner Motors, a partnership, composed of R. L. Turner and Anna L. Turner. Our cases hold that where several defendants are originally sued and another party defendant is added by amendment, a judgment entered on a verdict against the party added by amendment alone, works a discontinuance of the cause. Donaldson v. Donaldson, 216 Ala. 259, 112 So. 836; Van Landingham v. Alabama Great Southern R. Co., 243 Ala. 31, 8 So.2d 266. The foregoing principle is not applicable to the present case. No new parties were added. The amendment merely served to designate properly and to bring into court the legal entity subject to the suit and intended to be served in the first instance. Ewart v. Cunningham, 219 Ala. 399, 122 So. 359; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871; § 239, Title 7, Code of 1940.

III. The appellant takes the position that the judgment entered on the verdict in the case at bar is fatally inconsistent because the judgment is in favor of each individual member of the partnership while at...