Smith v. Hensley
| Decision Date | 29 September 1961 |
| Citation | 354 S.W.2d 744,98 A.L.R.2d 340 |
| Parties | M. H. SMITH et al., etc., Appellants, v. Clyde HENSLEY, Appellee. |
| Court | Supreme Court of Kentucky |
Roy W. House, Manchester, Denney & Landrum, Lexington, for appellants.
A. E. Cornett, Hyden, for appellee.
STANLEY, Commissioner.
The action is by Clyde Hensley, one of eight partners constituting the firm of Mary Gail Coal Company, against all the partners, including himself by name, to recover damages for the value of a motor truck owned individually by the plaintiff, which he alleges was destroyed by the negligence of employees of the partnership.
The partnership operated a coal mine near Hyden and had its production transported by a fleet of thirty or more trucks to a tipple on a railroad at Manchester. Sometimes the trucks made several round trips a day. They were serviced by their several drivers at a gasoline filling station owned and operated by the company at the mine scales. Hensley's personally owned truck was one of the fleet. The evidence is skimpy. There is no evidence as to the contractual relationship, but the appellants do not question appellee's statement that his truck and driver had been 'hired' by the company.
On June 10, 1958, plaintiff's driver had filled his gasoline tank preparatory to hauling a load of coal to the tipple when gasoline became ignited and fire destroyed the truck. The plaintiff alleged this was caused by the defendants' negligently permitting gasoline to be spilled from the pumps and to remain exposed on the ground. The defendants pleaded sole or contributory negligence of the plaintiff's driver or that the loss was an unavoidable casualty. Upon a verdict judgment for $4,000 was entered for the plaintiff against his seven partners.
The defendants have contended that the plaintiff may not maintain the action against his co-partners. Specifically, they say the manager and other employees of the mining partnership were agents of the plaintiff as well as agents of the defendants, and their negligence, if any, was imputable to the plaintiff as well as to the defendants. The record fails to disclose the articles or contract of partnership, but we may assume that it was a general, ordinary partnership, without limitations or reservations inter se.
The situation presents a novel question in the field of partnership law.
Various legalistic concepts could be invoked as a basis for denying a right of recovery to the plaintiff. One would be that a partner cannot sue the partnership because a litigant cannot sue himself. Another would be that if negligence of the partnership employees is to be imputed to the defendant partnership to establish a basis for liability, by the same token the negligence must be imputed to the plaintiff so as to bar recovery.
It is our opinion, however, that under a realistic approach, seeking to achieve substantial justice, the plaintiff should be held entitled to maintain the action.
It is true that an action at law ordinarily is not maintainable between a partner and his firm. Simons v. Douglas' Ex'r, 189 Ky. 644, 225 S.W. 721; Hibbard v. Browning, 237 Ky. 754, 36 S.W.2d 371; 68 C.J.S. Partnership Sec. 109, p. 552. But the situation here presented is not an ordinary one. The law is well settled that a partner who has paid an obligation of the firm out of his own funds may obtain contribution from his copartners. 68 C.J.S. Partnership Sec. 116, pp. 557, 558. Also, a partner is entitled to reimbursement from the firm for losses suffered by him in the ordinary and proper course of the firm affairs. 68 C.J.S. Partnership Sec. 82, p. 521. Compare Bower & Bower v. Collinsworth, 187 Ky. 1, 218 S.W. 455.
As concerns use of the doctrine of imputable negligence, courts have recognized that the doctrine is of artificial creation and must in particular cases yield to reason and practical considerations. 65 C.J.S. Negligence Sec. 157, p. 797. As with the related doctrine of respondeat superior, it had its origin in considerations of public policy, convenience and justice, and has been developed and extended out of the necessities of changing social and economic conditions. 35 Am.Jur., Master and Servant, sec. 543, p. 974. It has been held by this Court that the doctrine of imputed negligence is inapplicable in an action between members of a joint enterprise or partnership. See Dorris v. Steven's Adm'r, 266 Ky. 602, 99 S.W.2d 755.
Clearly, if negligence of the partnership had caused damage to the property of a stranger, the partnership would be liable. KRS 362.210, 362.220. We do not find any just reason for denying recovery where the damaged property is that of a partner. It seems to us that the damage should be considered an ordinary business loss.
It perhaps could be argued that while public policy imposes liability upon a partnership for damages to property of strangers, there is no public policy requiring partners to share the loss from damages to property of one of their number sustained in carrying on the partnership business. However, in both instances the considerations of public policy grow out of the realities of the economic world, and we find in those realities no basis for saying that if there is damage to property of a stranger, or to property owned by the partnership, the partners must share the loss, but not so if the property is owned by one partner.
The law is well settled that if one partner negligently damages the property of another partner, the latter may recover from the former. 40 Am.Jur., Partnership, sec. 493, p. 468. Thus there is no basic public policy or rule of law to the effect that a partner who uses his own property in connection with the partnership business does so completely at his own risk. Why then, should he be held to assume the sole risks when the damage is done by a partnership employee rather than by another member of the partnership? It is a common practice for partnerships to carry on their business through employes. The practical realities of the business world dictate that the partners should share the loss of damage to property resulting from the negligence of the partnership employees, regardless of who owns the property.
If it be considered, as appears actually to have been the case here, that the use of the plaintiff's...
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