Story Case

George Brewer and Andrew Fell were partners in the meat market business. While Brewer was away on his vacation, Fell borrowed a horse from Amos Witcher to make a delivery to a customer. The boy who had charge of the horse was careless with it, and as a result, an accident occurred and the animal was injured. Later, Witcher sued Brewer alone for the damage done to the horse. The latter maintained in defense that he was away, and gave no authority to Fell to borrow a horse. Is this a good defense?

Ruling Court Case. Hess Vs. Lowrey, Volume 122 Indiana Reports, Page 225; Same Case, Volume 17 American State Reports, Page 355

Luther and Frank Hess were partners, engaged in the practice of medicine and surgery. The plaintiff, having sustained a severe injury, went to them for attention. Luther Hess so negligently treated the injury that much damage and suffering was caused the plaintiff. He, thereupon, brought this action against the defendants jointly, seeking to charge them for the damages which he suffered. During the pendency of the action, the defendant, Luther Hess, died and the action was continued against the defendant, Frank Hess.

At common law, a personal action of this character was terminated by the death of the person inflicting the wrong. If both partners were jointly and individually liable for the wrongs of each, committed in the course of their partnership affairs, then the cause of action, though ceasing as to the deceased partner, did not cease as to the surviving partner.

Decision

Each partner is jointly and individually liable for all the torts committed by his copartner, so long as his copartner acts within the course of his employment. This being true, the cause of action was not terminated as to the defendant Frank Hess. The Court, therefore, held that the plaintiff might recover from the defendant such damages as he suffered by the negligent medical treatment which he received from the deceased partner.

Ruling Law. Story Case Answer

A partner, while acting for and transacting the business of his firm, is acting as agent, not only for the firm but for his copartners. The liability, therefore, of one partner for the torts of his copartners is the same as the liability of any principal for the torts of his agent or servant. Accordingly, if a partner, while acting within his authority and about the business of the firm, commits a tort, not only is he liable, but all the other partners are also liable.

"We have seen that the liability of the partners on firm contracts is a joint liability, but their liability for a tort committed by a partner is both joint and several. That is to say, the person injured may either sue all of the partners or he may sue one of them. Therefore, in the Story Case, Witcher could hold Brewer alone for the damage done to the horse, since the animal was borrowed by Fell while he was acting within the scope of his authority.