Tucker v. Graves

• Decision Date: 09 November 1920
• Docket Number: 5 Div. 329
• Citation: 88 So. 40,17 Ala.App. 602
• Parties: TUCKER et al. v. GRAVES.
• Court: Alabama Court of Appeals

88 So. 40

17 Ala.App. 602

TUCKER et al. v. GRAVES.

5 Div. 329

Court of Appeals of Alabama

November 9, 1920

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by Henry M. Graves, against Arthur L. Tucker and others individually and as partners, doing business under the firm name and style of Palace Pharmacy, for damages for personal injuries in the sale of drugs. Judgment for the plaintiff and defendants appeal. Affirmed.

Each partner is the agent of the partnership as to all others coming within the scope of the relationship.

The first count alleges that the defendants were doing business as retail druggists and pharmacists in the town of Camp Hill and that the plaintiff applied to them for paregoric, a safe and harmless medicine, and was waited upon by Arthur L. Tucker, who was acting in said business as a member of the firm, and was in the line and scope of his duties, and that, instead of furnishing him with the paregoric, Tucker negligently furnished, sold, and delivered to him a noxious, baneful, and poisonous drug in a six-ounce bottle, the said bottle being wrapped at the time it was delivered to the defendant, and that the plaintiff, believing the same to be paregoric, administered some to himself, and was caused to suffer great and excruciating pain, and made sick and sore, and that his kidneys and bowels were permanently injured, and that said injuries were proximately caused by the negligence of the aforesaid.

Count 3 is based upon a violation of section

and avers that Arthur L. Tucker, a member of the partnership, while acting within the line and scope of his duties, and while acting as druggist and pharmacist for the defendant, retailed to the plaintiff a preparation of arsenic, which was a poison, without labeling the vessel in which it was contained with the name of the article and with the word "poison" thereon, and delivered said poison to the plaintiff without making inquiry and finding that the plaintiff, who was the purchaser thereof, was aware of the poisonous character of said preparation of arsenic. After averring that the plaintiff administered the same to himself, believing it to be a safe and harmless drug, and after averring his injuries, the count concludes as follows:

"Plaintiff alleges that his said injuries proximately caused by the failure of said Arthur L. Tucker to label said preparation of arsenic with the word 'poison,' and by his delivering the same to the plaintiff inquiring whether the plaintiff was aware of its poisonous character."

Plea 5, as it appears of record, is a sworn plea as follows:

"The defendants are not now, and were not at the time of the alleged sale, of said drug, partners composing the Palace Pharmacy."

The following are the assignments of error referred to in the opinion:

"(10) Overruling the objection of the defendants to the following question propounded by plaintiff to the witness Coggins, 'Now, in your judgment from the symptoms as you saw them there, and the condition that you have said you found Mr. Graves in-from what, in your opinion, was he suffering?"'

"(20) Sustaining objection to the following question asked by the defendant of the witness Wood: 'What did Dr. Coggins state he was treating him for?"'

"(19) In sustaining the objection of the plaintiff to the question asked Arthur L. Tucker by defendant's counsel. [The question does not appear, nor is the page of the transcript referred to.]"

"(21) In sustaining plaintiff's objection to the following, asked Arthur L. Tucker by the defendant: 'Did he ask you to pay him some money?"'

"(23) Same witness, 'What did he say about that, about how much?"'

The other facts sufficiently appear.

James W. Strother, of Dadeville, for appellants.

Barnes & Walker, of Opelika, for appellee.

SAMFORD J.

For convenience we will consider the assignments of error in the order in which they are presented in brief, confining the discussion to such points as are properly insisted upon.

By the averments of the complaint, as amended, the defendants were members of a firm of merchants engaged in selling drugs to the public. It was therefore the duty of the firm and of each individual thereof to see to it that in its dealings with the public its agents and employees acted with due care and diligence in selling and dispensing the drugs which they, as a firm, were offering to the public for sale. Each partner was acting as agent for the firm, and for the other partners, so long as he was acting within the line and scope of the partnership business. Orr, Jackson & Co. v. Perry, 16 Ala.App. 658, 81 So. 150. As such, each partner, as well as the firm, would be liable to a third party for a negligent act of one of the partners, committed by him while acting within the scope of the partnership, from which damage was sustained by plaintiff, resulting naturally and proximately from the tort of the partner. Collyer on Partnerships, section 457; Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L.R.A. 650, 67 Am.St.Rep. 32.

The partners being liable as joint tortfeasors for the negligent act of a partner, acting within the line and scope of the firm's business, the plaintiff had his election to sue either one or all, and the fact that the suit was originally brought against all, and was afterwards amended by simply striking out the firm and one member as defendants and leaving the allegation as to the partnership, did not...