Connolly v. Davidson

Eipley, Ch. J.

By the Court On the 4th Nov. 1864, the plaintiff was employed as a deck hand on board the steamboat Albany, on which day said boat and the steamboat John Eumsey were navigating the Mississippi river, and when near Saint Paul, and near each other, the boiler of the John Eumsey exploded, by which personal injuries were occasioned to the plaintiff, to recover damages for which this action ivas brought, in which at the May term, 1868, of the district court of Eamsey county, the jury returned a verdict for plaintiff, and against defendant Davidson. The case comes up upon exceptions to instructions given by the court to the jury, and to its refusal to give certain instructions prayed for by defendant Davidson.

The explosion is that out of which the actions of McMahon vs. Davidson, 12 Minn. 357 , and Fay vs. Davidson, 13 Minn. 528 , arose.

In the former, plaintiff was a deck hand on the Eumsey, in the latter, a passenger on the Albany. We are unable to see how the fact that plaintiff was a deck hand on the Albany makes any difference in principle. Those decisions, therefore, sustain the instructions given, and the refusal to give the instruction asked by defendant as to the effect of the explosion as evidence of negligence, and the application of the act of Congress, as the same are set out in the bill of exceptions. The second and third instructions asked by the defendant and refused, are identical respectively with the second and fifth asked for by him in Fay vs. Davidson, and held in that case to have been properly refused ; .the latter as abstract and inapplicable to the case, because the interest of Davidson, whatever it was, was not an interest attaching at the end of the season ; the former, because he might have an interest which would have made him responsible for the negligence of the employees on the John Eumsey, although *530 it did not give him a right to control or take part in the hire and discharge of such servants. These reasons are equally applicable to the present case. It follows that the second and third instructions asked were properly refused; and also, that such refusal does not, as the defendant contends, assume, in substance, that the agreement testified to by Davidson made him a partner with Eumsey.

The defendant objects further, that the charge is to the effect, that any interest without regard to its character, in the earnings and profits of Eumsey’s boats, would make Davidson a partner with Eumsey, and the second and third instructions, given at plaintiff’s request, are specified as those, obnoxious to this objection : but they are not in our judgment.

As to the second instruction, the division there contemplated must, we think, be understood as a division of the profits, as such, of the boats. The word “profits,” must be taken, as it is to be presumed that it would be taken by the jury, to mean the excess of receipts over expenditures; that is, net earnings; such being its usual, ordinary and correct meaning. A stipulation for a share ofthe.net gains, is a stipulation for a share of profits, as such. Story, Part. p. 51. Doe vs. Halsey, 16 Johns, 34, 40. This instruction does not assume, then, that any interest, without regard to its character, in the earnings and profits of Eumsey’s boats, would make Davidson a partner with Eumsey. Nor does the third : that does not necessarily imply that the boat was solely owned by Eumsey; but if it did, yet if Davidson were equally interested with Eumsey in her earnings, and profits, there must have been a joint ownership in the profits; for if Eumsey were sole owner of the boat, his interest in the profits would be that of owner, and so must Davidson’s be, otherwise he would not, as to them, be, in that particular, *531 upon an equality with Rumsey. Equally interested imports equality in all respects.

It will not be denied that an agreement for a share of profits, as such, would vest a present interest or ownership in them as they accrue and before they are divided.

The time at which the division is to take place is immaterial. . The second instruction as well as the third, assumes, therefore, a joint ownership in the profits.

The defendant however, objects further that said second instruction assumes that such a contract as Davidson testified to would have the effect to create the relation of partnership between himself and Rumsey.

The difference between his testimony as stated in Fay vs. Davidson, and in this bill of exceptions is obvious and we think material. If his evidence, as here stated, would tend to prove an agreement to divide profits, as distinguished from gross earnings, the defendant’s proposition is correct, otherwise not. ■ Por it is not to be presumed that the court used, or the jury .understood the word profits to be used in any other than the correct and ordinary sense above indicated. Such an assumption as to the jury would be inconsistent with that intelligence which the theory of trial by jury pre-supposes. Raymond vs. Nye, 5 Met. 151 . We are not prepared to say, however, that his evidence does not tend to prove an agreement to divide profits as distinguished from gross earnings. The agreement was, that at the end of the season of navigation for that year, they should divide in certain proportions agreed upon the earnings of certain specified boats, including the earnings of the John Rumsey and Albany, the earnings of the said John Rumsey and Chippewa Palls to be equally divided, and that at the end of such season each should render an account of the earnings of his boats during such season, to the other, and then *532 the balance according to the proportions agreed on should be paid over.

Neither the principles which regulated the division, nor the proportions in which the‘earnings, of the other boats were to be divided are stated, but it is quite conceivable, nay fairly to be inferred, that the probable cost of running each boat was taken into the account in settling the proportion of earnings with which it was to be credited, and that the cost of running the Chippewa Falls and John Rumsey, may have been assumed as equal. An equal division of their earnings would otherwise be apparently inequitable, in the absence, that is to say, of any information respecting the two boats other than that furnished by the bill of exceptions, and we cannot'presume that the parties'made any arrangement which would not look to an equitable division of the results of the business, if the parties assumed that the expenses of running each boat would be the same, then the agreement to divide the earnings equally, would be an agreement to divide profits.

Suppose, however, that Davidson’s testimony has • no tendency to prove an agreement to divide profits ? There would then apparently be no evidence in the case so far as the-bill of exceptions discloses it tending to prove the state of facts assumed by the second instruction: still the jury might, upon the evidence stated, have believed that Davidson and Rumsey jointly owned and managed the John Rumsey and found a verdict for plaintiff on that ground. It cannot, therefore, be said that the result shows that the jury were misled by the generality of the charge to believe that it referred to Davidson’s evidence; if not, and it was correct in point of law, the judgment will not be reversed because there was no evidence to warrant the charge. 3 Gra. & W. 828. Defendant might have asked for more specific instruc *533 tions if he feared any -misapprehension on the part of the jury. Indeed, this being a bill of exceptions not purporting to give the charge in full, we cannot presume that instructions sufficiently specific to prevent the jury from confounding the agreement sworn to by Davidson, with that assumed in the charge, were not given. Where the case comes up on such a bill of exceptions, the presumption is that the charge, where not set out, was full and correct on all material points.

The question remains whether this second instruction is correct in point of law.

In the first place, if a partnership existed between Davidson and Pumsey in the business of running the boats as stated in the bill of exceptions, Davidson was liable in tort for the negligence of a servant exclusively employed and paid by Pumsey, by which a third person should be injured while such servant was engaged in said, business. Coltner vs. Beltner 1 Bro. 490. Champion vs. Bosbwick 18 Wend. 175 . The liability of one partner, for the acts of his co-partner is but the liability of a principal for the acts of his agent. Story, Part. sec. 1.. In the next place, it is not necessary that such partnership should have been intended or actually exist. It is sufficient if the facts are such that the relation exists as between the parties and third persons, whatever may have been the intentions of the «parties in that behalf. Champion vs. Bostwick and Wife, 18 Wendell 175 . The defendant says, however, that there was no connection in the business ; each was to run his boats where he pleased, and as he pleased.

In the ease last above cited, which presents many points of analogy with this, the decisive feature was, that all the fare received from passengers by any of the parties was to be a common fund for division. Per Comstock J. in Merrick vs. Gordon, 20 N. Y. 93 .

*534 So here, all the receipts for passengers and freight on any part of the route of either boat, constituted a common fund for division. And in Smith vs. Wright, 1 Abb. Pr. Rep. 243, there was no more “mixing of management” than in this case, each of the firms alleged to be partners, having the exclusive control and management of the business done by it under the agreement between them. These two mercantile firms mutually agreed each to put out contracts in its own name, for sale and delivery of produce at future days, all profits of such adventures and all losses to be equally divided.

The court of appeals reversing the judgment of the supreme court, (S. C. 5 Sanford, 113) held that this agreement created the relation of partnership as to third persons, and that the one firm was liable as a partner upon a contract made by the other, accordingly, in its several name.

It is true the court observe in that case, that a community of interest in the profits is all that has ever been considered necessary to create a partnership as against third persons ; whereas the modern English rule is, that the test whether a person who is not an ostensible partner in a trade is nevertheless in contemplation of law a partner, is not whether he is entitled to participate in the profits, although this affords cogent, often conclusive evidence of it, but whether the trade has- been carried on by persons acting in his behalf. Smith vs. Wright, would nevertheless fall within the English rule, for if there was to be a community of interest in the profit and loss of each contract, the firm that made it was certainly acting on behalf of the other, as well as itself, in so doing.

Neither is the circumstance, if it be so, that by the agreement which the second instruction assumes, each would bear his own losses, at all inconsistent with the existence of a partnership as to third persons.

*535 In Waugh vs. Carver 2 H. Bl. 235, the leading case on this subject, there was an express stipulation, that neither of the alleged partners should be answerable for the acts or losses of the other. In that case A. and B. ship agents at different ports, entered into an agreement to share in . certain proportion,- the profits of their respective agencies, and they were held partners as to third persons notwithstanding .the above stipulation as to losses. Nor is it material “that the balance according to the proportion agreed on, was to be paid over at the end of the season.” See a similar agreement in substance in Waugh vs. Carver. "We might admit the English doctrine as laid down in Wheelcroft vs. Hickman, 99 E. C. L. 47, and yet the fact, that by the agreement which the second instruction assumes, the profits of the business were to be equally divided, would, we think, furnish conclusive evidence of the existence of a partnership as to .third persons. Whatever should be earned by either under that agreement would be received on joint account, to be subsequently divided, which would make them partners as to third persons. 1 Smith Lea. Ca. Pt. 2, 1191. In carrying on the business in which it was earned each would act for the other as well as for himself. “A man who orders another to carry on trade, whether in his own name or not, to buy and sell, and pay oyer all the profits to him, is undoubtedly the principal,, and the person so employed is his agent. So, if two or more agree that they should carry on a trade and share the profits of it, each is a principal, and each is an agent for the other, and each is bound by the other’s contracts in carrying on the trade as much as a single principal would be by the act of an agent who was to give the whole of the profits , to his employer. Hence it becomes a test of the liability of one for the contract of another, that he is to.-' receive the whole *536 or a part of the profits arising from that contract by virtue of the agreement made at the time of the employment. I believe this is the true principle of partnership liability.” Per Lord Winsleysdale in Cox vs. Hickman 99 E. C. L. 47, 99.

We perceive nothing in the state of facts assumed by the instruction which would go to repel the presumption arising from the agreement to share profits that in running his boats Rumsey was acting as well on behalf of Davidson as of himself. The instruction is therefore, we think, correct in point of law.

The defendant further excepts to the instructions given and to the refusal to give the first instruction prayed for by him, because, as he alleges, if there was a partnership the John Rumsey and Albany were in it, and as the jury must have found that plaintiff’s injuries were sustained through the negligence or misconduct of those.employed in navigs^ ting the John Rumsey, he must.be considered as'their co-employee, within the rule which exempts the master from liability to one of his servants for injuries sustained by him through the negligence, carelessness or misconduct of a fellow servant employed in the same general business. If Davidson’s testimony does not tend to'prove the state of facts assumed by the second instruction, there is no evidence that the Albany was included in any arrangement under which he and Rumsey were partners, in running the Rumsey. .If it does however, the case on this bill of exceptions does not fall within the rule referred to. . Plaintiff and those navigating the John Rumsey, cannot be said either to be engaged in the same common enterprise, or employed to perform duties and services tending to accomplish the same general purposes, as that language is used in the case of Wright vs. Central R. R. Co., 25 Wis. 562 , (relied on by *537 defendant,) as synonymous with “the same general busi ness.,” nor are the examples there given of maintaining and operating a railroad, “ operating a factory,” “ working a mine,” or “ erecting a building,” at all analogous to the case at bar. If, (and we think the test a good one as illustrated by the case of Abrahams vs. Reynolds, 5 Hurlston and Norman, 142,) the question in each case is, as the court of appeals state that it is, whether the alleged co:employees are under the same general control, the rule clearly cannot be claimed by defendant to apply here, for he swears that he and Eumsey had each the exclusive control and management of his own boats and hands. Each boat, in fact, was doing a separate business in every respect, (though of the same sort) as much so as any two independent railroads separately owned and managed but run for the joint profit of the owners, in which easily conceiveable case, while the ownei’s of the railroads might be partners as to third persons in the business of running each, the employees on each, though they were engaged in the common enterprise of maintaining and operating that road on which they were respectively employed, and assume the risks incident to 'that business, could no more be said to assume the risks incident to the business of maintaining and operating the road upon which they are not employed, than in the instance put in the leading case on this subject in this country of Farwell vs. Boston & Wor. R. R., 4 Metcalf, 49.

There was no error, therefore, in the instruction in this respect and the instruction asked and refused, would, in our view of the case, be an abstract proposition having no application to the facts of the case and therefore properly refused.

Judgment affirmed.