Idom v. Weeks Russell , 135 Miss. 65 ( 1924 )

I dissent from the opinion of the majority in so far as it holds that the record warranted a peremptory instruction in favor of J. D. Weeks, one of the partners, but agree with the majority as to Russell's liability. Russell was the managing partner of the business, and had general control of the drug store. Dr. Weeks sometimes assisted in the business, but was engaged in the practice of medicine, and was not regularly in the store.

As stated in the majority opinion, there had been some burglaries in the town of Ackerman, and rumours of others to be committed, and on the evening prior to the killing there had been a general meeting of the citizens of the town for discussing plans for meeting the situation. The crowd, however, dispersed, and Rassell went to the store, taking two other persons with him, and entered the store. The record does not show that he served any notice on any of the people of the town of his purpose of being in the store to guard the store. He had not been deputized, as far as the record shows, to serve in any capacity as an officer in policing the town, and he was not engaged in such duty at the time of the killing, but was in his own place of business armed, and the evidence shows that a light flashed on and off in the store which attracted the attention of the deceased and his companions who were at the railroad depot, the plaintiff's husband being an agent engaged in the business of the railroad company and of the telegraph company at the depot. These parties, having been with the citizens in their meeting, and fully advised of the fears of burglary, suspected that burglars were in the drug store, and proceeded to the store, and tried the door to see if it was open. Russell and his companions made no effort whatever to arrest the parties, did not call out to them to surrender, or give them any notice whatever that they were the parties who were inside the store, but Russell, who was armed with a pistol, raised up from the floor fired two shots, resulting in the death of the two men. Russell was a partner and joint owner of the goods in the drug store, and manifestly was there solely for the purpose of protecting the property of the partnership.

If it is the duty of a partner to preserve and protect the partnership assets, then without doubt Russell was engaged in and about the business of the partnership at the time of the killing, and the killing was for the purpose solely of preventing the store from being burglarized, as there was no effort whatever to make an arrest.

L 20 Ruling Case Law, p. 882, section 94, under the heading "Agency of Partners," the law is stated as follows:

"The law of partnership is a branch of the law of agency. The functions, rights, and duties of partners in a great measure comprehend those of agents, and the general rules of law applicable to agents likewise apply to partners. Accordingly the liability of one partner for the acts of his copartners is founded on the principles of agency. Every partner in a commercial partnership, apart from any special powers conferred on him by the articles of copartnership, is not only a principal, but also a general and authorized agent of the firm, and the agent of all the partners for all purposes within the scope and objects of the partnership. Thus it is that a partner embraces the character both of principal and agent. With respect to the concerns of the partnership, he virtually acts as principal for himself and as agent for his partners. During the existence of a partnership therefore each member is deemed to be authorized to transact the whole business for the firm, his acts being treated as the acts of all, and binding on them, just as if they were present and sanctioning that which is done, whether it is done in the firm name or in the name of a partner."

In Heirn v. McCaughan, 32 Miss. 17, in the seventh and eighth syllabi, our own court makes the following announcement:

"A partner cannot bind the firm by an act clearly not within the partnership business; yet he has power to bind the firm in all parts of the business in which it is engaged, and in all transactions, whether direct or incidental, appertaining to its business. And though the partner exceed the terms of the partnership, yet so far as third persons, having transactions with them, without notice, are concerned, the copartners are bound, if the transaction be such as the public may reasonably conclude to be embraced within the partnership business, or be incident or appropriate to such business, according to the course and usage of carrying it on.

"The tort of one partner is considered the joint and several tort of all the partners, wherever the wrongful act complained of is connected with the business of the firm or is incidental to it, as the business is carried on; and a partner who has no direct participation in the tort of his associate, is chargeable civiliter to the same extent (including exemplary damages) as the real actor is bound."

At page 50 of this report (32 Miss.), our court said:

"It remains only to consider the grounds upon which it is urged that a new trial should have been awarded on the defendant's motion, and which have not already been considered.

"First. It is said that, as there was no evidence tending to show that Heirn had any actual participation in making the appointment for the stoppage of the boat at Pascagoula, or in giving the notice, or in the failure, he could not be held responsible, though his copartners, Geddes and Grant, might be; for one partner is not chargeable with the tort of his copartners, done without his knowledge.

"This would be true if the wrongful act was wholly unconnected with the partnership business. But where it is connected with the business of the firm, and is incident to it as the business is carried on, the tort of one partner is considered the joint and several tort of all the partners; and the partner doing the act is considered as the agent of the other partners. And it is held that, in such cases, all the members of the firm may be sued, or any one of them may be sued alone."

In the case of Robinson Pattison v. Goings, 63 Miss. 500, it was held that both partners of a partnership were liable for punitive damages for the unlawful seizure and detention of one's property whereby he is prevented from the orderly prosecution of his business, and where in such case the property is seized by the one member of the firm in attempting to collect a debt of the firm the other member of the firm is equally liable with the one who made the seizure of such property to the owner thereof.

In Russell v. Palatine Ins. Co., 106 Miss. 290, at page 300 (63 So. 644, 645, 51 L.R.A. [N. S.] 471), our court said:

"A servant intrusted with his master's goods may do what is necessary to preserve and protect them, because his authority to do so is clearly implied by the nature of the service."

If therefore one partner is the agent of the other partner for the purposes of the partnership, then Russell had the right to protect the assets of the partnership from being burglarized, and, if in attempting to do this he negligently and unnecessarily killed the plaintiff's intestate, then both members of the partnership are clearly liable for such wrongful killing. It seems to me that it could not be contended that Russell did not have the authority to employ a person to go in the store and guard it, and, if he had done so, and such person so employed to guard the property had negligently killed the parties who were killed in this case, both partners would have been liable; Russell having full authority to make any contract for such purpose. It seems to me it could not be disputed that a partner is under duty to preserve and take care of partnership property, and, if he had knowledge of the burglary or theft which would lead him reasonably to believe that such would be committed, and failed to take some action to prevent the burglary or theft, that he would be liable to his partner for the damages or theft, unless he gave due notice to the other partner so that he would take proper steps to protect his own interests.

It is well-settled law that a person or a corporation is liable for the acts of his employees and agents committed in the scope of their employment, even though they act unnecessarily or willfully in performing the act which lies within the scope of their employment.

In King v. I. C. R. R. Co., 69 Miss. 245, 10 So. 42, this court held that a railroad company was liable for the arrest of a person by its depot agent, even though the act of February 22, 1890 (Laws of 1890, p. 106), constitutes the depot agent in this state a conservator of the peace, with authority to preserve order in waiting rooms, and with power to make arrests. The court held that the act in question did not make depot agents officers of the state, but merely enlarges and defines their duties as agents of the railroad company. It was held that, if a depot agent arrest one not guilty of disorderly conduct or otherwise liable to arrest under the statute, the company is liable for false imprisonment, although the agent had no express instructions to make the arrest, and supposed he was acting as an officer of the state. The case was reversed and came on for trial again, and a second appeal was taken to this court, which is reported in 69 Miss. 852, 13 So. 824, and the court again held the railroad company liable for an unlawful arrest and imprisonment, if made by its agent while acting within the scope of his employment, notwithstanding that in doing so he was also acting for another railroad company.

In N. O. J. G. N. R. R. Co. v. Allbritton, 38 Miss 242, at page 277 (75 Am. Dec. 98), our court laid down this rule as governing the liability of the principal for the torts of his agent:

"In all cases where it appears that the employment of the principal afforded the agent the means or opportunity, which he used while so employed, in committing an injury on a third person, the principal must be held responsible. The willful trespass, or injury of the agent, derived from the authority confided to him by the principal, as a source of power, in the exercise of his master's employment, will make the principal responsible. And this upon the reason, that he who employs and confides should be the loser rather than a stranger — a rule of justice entirely consonant with the maxim of the Roman law already cited."

In Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252, we held that the owner of the store was liable for slander uttered by its agent in and about the company's business. And in the recent case of Kress Co. v. Crosby, 98 So. 437, we held that the corporation was liable for the acts of its manager in committing an assault upon an employee about the master's business in connection with another person. There are numerous other cases in our reports making the principal responsible for the acts of the agent when committed in and about the master's business, although unauthorized by the master, and, in some cases, even contrary to his express directions.

In Pearson v. Great Southern Lumber Co., 134 La. 117, 63 So. 759, L.R.A. 1916F, p. 1247, the Louisiana supreme court announced the following proposition of law:

"(1) A corporation is liable in damages for an unlawful arrest instigated by one of its employees acting in the pursuit of an object relating to the business of his employer, and designed to be of benefit to it.

"(2) Where the electric bulbs of a corporation had been broken by unknown persons, and a watchman in the employ of the corporation causes the arrest of a person whom he suspects of having broken some of them, he is acting for the benefit of the corporation, and, if the arrest is illegal, and without probable cause, the corporation is liable to the person illegally arrested, and the fact that the arrest is actually made by some one other than the watchman, but at his instigation, does not shift the liability of the corporation.

"(3) An arrest for a misdemeanor not committed in the presence of the officer arresting should not be made without an affidavit and warrant, and, where this is done without a sufficient inquiry as to the guilt of the party arrested, the person or corporation responsible for the arrest is liable in damages."

To the L.R.A. report in this case, at pages 1249 et seq., is a case note citing a number of cases pertinent to the inquiry now before the court. I quote from the case note as follows:

"Thus the master is liable for the act of his watchman in assaulting and arresting one whom he erroneously believed to be a trespasser, where he had authority to eject trespassers from the master's premises and to arrest them for trespassing. Childers v. Southern P. R. Co. (1915), 20 N. M. 366,149 Pac. 307. . . .

"A private detective, employed by a store company to guard its property from theft, and to report to the company or to the city detectives when thefts were committed, was acting within the scope of her authority in following a person suspected of carrying away the company's property, and procuring her arrest by a policeman away from the store, rendering the store company liable for false imprisonment.L. S. Ayres Co. v. Harmon (1914), 56 Ind. App. 436, 104 N. E. 315.

"Evidence that a peace officer was employed by proprietors of a store to guard the merchandise from theft, detect thieves, and recover property that had been stolen is sufficient to warrant a court in submitting to the jury the question whether the officer was acting within the scope of his employment, so as to render the proprietor liable for his conduct, in following from the store and assaulting and arresting a woman whom he suspected of shoplifting. Perkins Bros.Co. v. Anderson (1913), — Tex. Civ. App. — , 155 S. W. 556.

"A deputy constable, employed by the manager of a show to preserve order, was acting in the course of his employment rather than in his official capacity as a public officer, so as to render the employer liable for his conduct, in settling a dispute as to who was entitled to a seat, and in forcibly removing and arresting and incarcerating a person who refused to vacate the seat, where he was instructed to settle the dispute, although he was not instructed to make the arrest.Rucker v. Barker (1912), — Tex. Civ. App. — , 151 S. W. 871. . . .

"A watchman employed to protect the property of a railroad company, and to make arrests, was acting solely in the furtherance of the company's business and in its interest in arresting a person suspected of stealing property from the cars, so as to render the company liable where the arrest was wrongful. Louisville N. R. Co. v. Owens (1915),164 Ky. 557, 175 S. W. 1039. . . ."

In "Thomas v. Canadian P. R. Co. (1906), 14 Ont. L. Rep. 55, 8 Ann. Cas. 324, MULOCK, C. J., said: `As watchman, deriving authority from the company, it was his duty to protect the property on their premises which they had intrusted to his care, and he was thus clothed with implied authority from them to do such reasonable acts as he might, on the exigency of the moment, deem necessary, in order to prevent injury to their property. If, therefore, he had found the plaintiffs on the premises of the defendants, endeavoring to steal the property placed by them under his charge, it would have been within the scope of his authority, as their servant, to arrest them, if he deemed it advisable to do so, in order to perform his duty as watchman, of preventing injury to the property in question. But such was the limit of his implied authority, and any acts of his in excess of such authority would not bind the defendants.'"

In Conchin v. El. Paso S. W. R. R. Co., (1910), 13 Ariz. 259,108 Pac. 260, 28 L.R.A. (N.S.) 88, the court held that a person, employed to watch the premises, and to turn over to police officers any person whom he believed to be committing a crime against the property, acts within the scope of employment in firing at a fleeing trespasser. It also held that a watchman was guilty of wantonness which will render his master liable for the consequences of his act in firing at a technical trespasser upon the master's property, who is retreating to avoid arrest or assault, although he did not intend to hit him, but only to halt or frighten him.

In Johnston v. Chicago, St. P., M. O. R. Co., 130 Wis. 492,110 N.W. 424, the master was held liable for the acts of the servant, where the servant in question was a watchman with authority to investigate past offenses, who assaulted and imprisoned the plaintiff for the sole purpose of obtaining information as to whether the latter had been guilty of throwing sticks at passenger cars. The court said the servant was performing his duties in his own way, and, although the methods employed were unlawful and unauthorized, they were within the scope of his duty, and were therefore the acts of the company.

In Magar v. Hammond, 183 N. Y. 387, 76 N. E. 474,3 L.R.A. (N.S.) 1038, the court held that a property owner is liable for the act of his servant charged with the duty of guarding his property, where the servant, in shooting a poacher thereon, acts within the general scope of a servant's employment, and that the act was done with a view to the furtherance of the master's business, although it was willful, wanton, and reckless, and that the question as to whether or not such act of the servant was within the scope of his employment is a question for the jury.

For other cases see, Mayor, etc., of City of Vicksburg v.Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469, and case note; Page v. Citizens' Banking Co., 111 Ga. 73, 36 S. E. 418,78 Am. St. Rep. 144, 51 L.R.A. 463, and note; State v. Mason, 26 Or. 273,38 Pac. 130, 26 L.R.A. 779, 46 Am. St. Rep. 629.

If we substitute the word "principal" for "master," and the word "agent" for "servant," these cases are precisely applicable to this suit. The relationship of partners involves, not only rights and liabilities between the partners, but also with other persons dealing with or affected by the partnership. As stated by the editors of the L.R.A., first series, and the case note to the 51 L.R.A. 469, toward the end of the note, there can be no sound reason for applying one rule to a corporation and another to a partnership.

I am requested by the Chief Justice to say that he concurs in the views herein expressed.