Austin v. Appling , 88 Ga. 54 ( 1891 )

Lumpkin, Justice.

1. Juries ought to agree upon verdicts whenever they can conscientiously do so, and it is not improper for the court to aid them in reconciling their differences of opinion by using such language as the following: “ If you disagreed about a matter of law, I could aid you; but as it is a matter of evidence, I cannot aid you, as you are judges of the evidence, except by some rules of law for your guidance. I can, however, give you this rule : in civil cases, where the jury cannot reconcile the testimony of witnesses conflicting, they can find a verdict according to the preponderance of the testimony. This jury is, in the eyes of the law, as capable of deciding this case and reaching a verdict as any other that may be empanelled hereafter, and I am disposed to give you some further opportunity to consider your verdict. Go to your room and make an honest effort to agree on a verdict, and follow the rules I have given you, and I do not think it will trouble you in agreeing.” Parker v. Georgia Pacific Ry. Co., 83 Ga. 540, 10 S. E. Rep. 233.

2. Appling was employed as a common laborer, and it was proved that it was no part of his duty to inspect the machinery and appliances used in the prosecution of the business. If such a duty had devolved upon him, he might have been chargeable with knowledge of any defect which existed in the fastening of the rope. Otherwise, he had a right to rely upon the judgment of the superintendent, it not appearing that the defect, if it existed, could be readily detected. It appears that the door did not remain in the same condition in which it was when Appling commenced to use it, and that the change in its condition, or in the fastening of the rope attached to it, caused it to fall. Under these circumstances, the court did right in declining to give the charges set forth in the second- head-note.

3. Verdicts must have a reasonable construction in the light of the pleadings upon which they are based. Hence, where three persons are sued ás a partnership, and two of them file pleas denying the partnership, and the question whether these two were in fact partners is one of the most seriously contested issues throughout the entire trial, a verdict finding against all three by name means that the jury intended to make them all liable as partners. This, certainly, is a common sense view of such a verdict under these circumstances, and we are not aware of any rule of construction which should prevent giving it the effect it was manifestly intended to have.

4. The evidence shows beyond controversy that Apjpling had no dealings with either Austin or Boylston, and that he did not even know they had been members of the firm composing the Fulton Lumber and Manufacturing Company until after he was injured. He was not even acquainted with them, and in no way acted on the faith of their being members of such firm. In point of fact, they were not members of it when he began work at the lumber-yard as a laborer. Before this time they had been members of this firm, but had retired from it. It is true that after their retirement Dobbs, the remaining member, did retain the same firm name, kept its sign over the door, and used some of the letterheads- and bill-heads of the old concern. These letterheads and bill-heads, however, did not disclose who composed the old firm. On them it appeared that T. H. Austin was president; • W. Jl. Dobbs, general manager ; A. D. Boylston, secretary and treasurer ; and John M. LaFontaine, superintendent, of “The Fulton Lumber and Manufacturing Go.”, The natural impression would be that this company ivas a corporation having these persons for its officers./ LaFontaine, in point of fact, was never a member óf the firm, but any inference that either of the others was such member would be equally applicable to him; yet, there^is no pretence that he could be made liable to the plaintiff in this case. Section 1895 of the code provides as follows: “The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. By the retiring of a dormant partner, it must be made known to all who had knowledge of his connection with the firm.” In a case like this, where the style of the firm does not disclose the individual name of any partner, although the members of the firm may not, strictly speaking, be dormant partners, yet it would seem that the law as to the kind of notice which should be given where a dormant partner retires would justly be applicable. In such cases, as appears by the section quoted, the notice need be given to those only who had knowledge of such partner’s connection with the firm. This application of the law can surely work no hardship, certainly not in a case of this kind. Appling did not engage in the service of Dobbs upon the idea that Austin and Boylston were his partners, and his injury was in no wise occasioned by reason of an erroneous supposition upon his part that they belonged to the firm or had ever belonged to it. He treated with Dobbs alone, not knowing, and doubtless not' earing, whether he had partners or not, or if so, who they were. It would, therefore, seem entirely contrary to justice to make Austin and Boylston liable to him, and it violates no legal rule to hold- otherwise. Story on Partnership, §160; 1 Bindley on Partnership, *p. 43; Richards v. Hunt, Rankin & Lamar, 65 Ga. 342; Richards v. Butler & Carroll, Ib. 593.

5, 6. Where a suit is brought against three persons as partners, charging them with the perpetration of a tort whereby the plaintiff was injured, and he fails to establish the existence of the partnership, but does .show by the testimony that one o'f these three persons, and that one only, is liable to him for the injury sustained, a verdict against the latter would be proper. The ruling here made is in harmony with the principle laid down in many authorities, that for torts partners are jointly and severally liable, and this court has settled the doctrine that, in this State, even in a suit against a partnership founded on contract, a verdict against only one of the alleged partners, if warranted by the evidence, is sustainable. Wooten & Co. v. Nall, 18 Ga. 609; Francis v. Dickel & Co., 68 Ga. 255; Maynard & Son v. Ponder, 75 Ga. 664; Ledbetter & Harris v. Dean, 82 Ga. 790; Schofield v. Jones, 85 Ga. 816, 823.

The evidence, we think, is sufficient to sustain the verdict as to the defendant Dobbs. ~We have already shown it cannot he sustained as to the other two defendants. Inasmuch, therefore, as the verdict might have been found against Dobbs alone, the same result may, we think, be properly accomplished by confining it to him. Accordingly, as to Dobbs the judgment is affirmed; and as to Austin and Boylston it is reversed, and we direct that as to them the action he dismissed.

Judgment affirmed in part and reversed in part, with direction.