Opinion
No. 32646
Decided January 23, 1952.
Partnership — Joint enterprise — Each member a principal and agent of others, when — Member's tort committed outside agency — Other members not answerable therefor, when — Joint proprietor excluded from management of business — No knowledge managing proprietor a dangerous individual — Not liable for malicious tort of managing proprietor.
1. Upon a showing that a partnership or joint enterprise exists, each member of such project acts both as principal and agent of the others as to those things done within the apparent scope of the business of the project and for its benefit.
2. Where one member of a partnership or joint enterprise commits a wrongful and malicious tort not within the actual or apparent scope of the agency or the common business of the particular venture, to which the other members have not assented, and which has not been concurred in or ratified by them, they are not liable for any harm thereby caused.
3. Where a joint proprietor of a business is excluded by the other proprietor from any voice or control in its management, and where the excluded proprietor does not know or have good reason to believe that the proprietor in control is a dangerous individual and prone to assault patrons of the business, the excluded proprietor may not be held accountable for a malicious and unprovoked assault on a patron by the proprietor in control, on the theory that the excluded proprietor was negligent in failing to take reasonable means and precautions to protect patrons from such hazard.
APPEAL from the Court of Appeals for Mahoning county.
Stephen j. Vrabel filed his amended petition in the Court of Common Pleas of Mahoning County against Florence Acri, praying for damages in the sum of $25,000.
The material allegations of such petition are that defendant was one of the proprietors and keepers of a tavern known as the Acri Cafe, in the city of Youngstown, where whiskey, wine and beer were sold to the public by the drink; that shortly after 10 p.m., on February 17, 1947, plaintiff and a friend entered such cafe as customers to buy and drink alcoholic beverages; that one Michael Acri was then in charge of the cafe; that he, to defendant's knowledge but not to plaintiff's, was a person of a quarrelsome, vicious and dangerous disposition, with a propensity to assault and injure others, and was suffering from a mental derangement of long standing; and that there was no employee in such cafe to maintain proper order and protect customers from assault and injury by Michael Acri.
The amended petition further alleges that at the place and time mentioned, when plaintiff and his friend were seated at the bar imbibing alcoholic beverages, Michael Acri, who was standing behind the bar, suddenly "drew out a 38 caliber gun" and without provocation or justification shot plaintiff's companion and then physically attacked plaintiff, causing him certain described injuries.
Such petition then continues in the following language:
"That the defendant was guilty of negligence which was the proximate cause of the plaintiff's injury, in the following respects:
"(1) In and about permitting an unfit and unsuitable person to be in charge of said tavern, as aforesaid;
"(2) In and about permitting the disorderly conduct in said tavern, as aforesaid;
"(3) In and about failing to provide an employee to maintain and to preserve peace in said tavern and to protect the safety and comfort of the plaintiff as a patron, as aforesaid;
"(4) In and about permitting the plaintiff to be assaulted, maltreated and injured, as aforesaid;
"(5) In and about failing to exercise ordinary care for the plaintiff's protection, as a patron of her tavern, as aforesaid."
After a demurrer to the amended petition was overruled, defendant filed an answer in which she avers that she had had no connection with the operation and management of the Acri Cafe since September 18, 1946; that on such date she was the wife of Michael Acri and left him at that time, because of his aggression, and established a residence of her own; that while she was living with Michael Acri she, at times, assisted in operating the cafe, especially when Michael Acri was absent due to illness; that she owns the land and building where such cafe is situated; and that such property was acquired through the joint efforts of herself and Michael Acri.
Following a general denial of the allegations of the petition, the answer continues with the recitations that at the times mentioned in the petition all licenses for the sale of alcoholic beverages in the Acri Cafe were obtained by Michael Acri and were held in his name alone; that from September 18, 1946, defendant was excluded by Michael Acri from the cafe and from any participation in the operation of the business there conducted; that such cafe was operated by Michael Acri solely on his own behalf and for his own benefit; and that on September 24, 1946, defendant instituted an action for divorce against Michael Acri and subsequently secured a decree of divorce.
For a second defense the answer avers "that plaintiff's amended petition does not state facts which show a cause of action against this defendant."
Issues were joined by a reply which contains a denial of all allegations of the answer "except such allegations as are consistent with and are admissions of allegations contained in the plaintiff's petition."
In the trial of the action before the court and a jury, defendant moved for a directed verdict at the close of plaintiff's case in chief and again at the close of all the evidence, both of which motions were overruled.
A verdict was returned for plaintiff in the sum of $7,500. Defendant's motion for judgment notwithstanding the verdict was overruled and judgment was entered in accordance with the verdict.
After the overruling of defendant's motion for a new trial, an appeal on questions of law was taken to the Court of Appeals, which court affirmed the judgment below.
This court allowed the motion to certify the record, and the cause is now here for disposition on the merits.
Mr. John A. Willo, Mr. Homer E. Carlyle and Mr. I. Freeman, for appellee.
Messrs. Hammond, Hoyt Hammond, for appellant.
It will be noted that the amended petition seeks to fix the liability of defendant to plaintiff for his injuries on the theory of negligence. Plaintiff contends that defendant and Michael Acri were joint proprietors of the Acri Cafe and that defendant, as a joint proprietor, was negligent in failing to exercise ordinary measures and precautions to protect patrons of the cafe from unprovoked attacks by Michael Acri, a person known to the defendant to be vicious and irresponsible.
The evidence presented on the trial supports the claims in the amended petition as to the manner in which plaintiff was injured. It shows that, while plaintiff and his companion were sitting quietly at the bar of the Acri Cafe on the night of February 17, 1947, partaking of alcoholic beverages, Michael Acri, for no apparent cause, shot and killed plaintiff's companion and afterward viciously attacked plaintiff. Evidence was also introduced which might justify the conclusion that at the time of plaintiff's injuries Michael Acri and the defendant, then husband and wife, were joint proprietors of the Acri Cafe which had been started in 1933, although defendant herself denied any such relationship.
Other undisputed evidence discloses that on a number of occasions from 1931, when defendant and Michael Acri were married, until sometime in 1946, the latter was a patient in different hospitals, clinics and sanitariums and under treatment by physicians, and that one of the sanitariums he entered "was a hospital for mental disorders and nervousness." However, no evidence was presented as to the nature of Michael Acri's mental or nervous trouble, if any existed, or as to its manifestations, and there was no evidence that he ever attacked, abused or mistreated anyone except defendant during occasions when they were experiencing marital difficulties.
Additional undisputed evidence shows that each and every license in connection with the operation of the Acri Cafe was applied for and issued in the name of Michael Acri alone; that defendant's operation and management of the Acri Cafe were confined principally to those times when Michael Acri was away on account of illness; that Michael Acri and his wife, the defendant, separated permanently in September of 1946; that shortly thereafter she sued him for divorce; and that, from sometime in September 1946 until plaintiff's injuries, defendant had no direct connection with the Acri Cafe, the sole management and control thereof being exercised by Michael Acri to the exclusion of defendant.
It also appears from the evidence that plaintiff secured a judgment for $10,000 against Michael Acri for the injuries received at Acri's hands, and that Acri is now serving a life sentence in the Ohio Penitentiary for killing plaintiff's companion.
For the purpose of the discussion which follows, we shall accept plaintiff's claim, supported by some evidence, that defendant and Michael Acri were joint proprietors of the Acri Cafe at the time plaintiff was assaulted by Acri.
The authorities are in agreement that whether a tort is committed by a partner or a joint adventurer, the principles of law governing the situation are the same. So, where a partnership or a joint enterprise is shown to exist, each member of such project acts both as principal and agent of the others as to those things done within the apparent scope of the business of the project and for its benefit. See Schloss v. Silverman, 172 Md. 632, 192 A. 343; Soulek v. City of Omaha, 140 Neb. 151, 299 N.W. 368; and Poutre v. Saunders, 19 Wn.2d 561, 143 P.2d 554.
Section 8105-13, General Code, a part of the Uniform Partnership Act, provides:
"Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act."
Such section, although enacted after the cause of action in the instant case arose, corresponds with the general law on the subject.
However, it is equally true that where one member of a partnership or joint enterprise commits a wrongful and malicious tort not within the actual or apparent scope of the agency or the common business of the particular venture, to which the other members have not assented, and which has not been concurred in or ratified by them, they are not liable for the harm thereby caused. See Schloss v. Silverman, supra; Idom v. Weeks Russell, 135 Miss. 65, 99 So. 761, 40 A.L.R., 668; Polis v. Heizmann, 276 Pa. 315, 120 A. 269, 27 A.L.R., 948; Dulchevsky v. Solomon, 136 Wn. 645, 241 P. 19; 40 American Jurisprudence, 262, Section 190; 68 Corpus Juris Secundum, 618, Partnership, Section 168; 1 Rowley's Modern Law of Partnership, 651, Section 512; and 1 Cooley on Torts (4 Ed.), 289, Section 88.
The proposition is stated as follows in Tarlecka v. Morgan, 125 Ohio St. 319, 322, 181 N.E. 450, 451:
"A tortious act committed by one partner which is outside the general partnership agency, renders that partner alone responsible, because he acts only for himself."
Because at the time of plaintiff's injuries and for a long period prior thereto defendant had been excluded from the Acri Cafe and had no voice or control in its management as to the hiring of employees or anything else, and because there is no showing that defendant knew or had good reason to believe that Michael Acri was a dangerous individual prone to assault cafe patrons, it seems to us that the theory of negligence adopted and urged by plaintiff is hardly tenable.
We can not escape the conclusion, therefore, that the above rules, relating to the nonliability of a partner or joint adventurer for wrongful and malicious torts committed by an associate outside the purpose and scope of the business, must be applied in the instant case. The wilful and malicious attack by Michael Acri upon the plaintiff in the Acri Cafe can not reasonably be said to have come within the scope of the business of operating the cafe, so as to have rendered the absent defendant, assuming her joint proprietorship of the cafe, accountable.
Since the liability of one partner or of one engaged in a joint enterprise for the acts of his associates is founded upon the principles of agency, the statement is in point that an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefor. See the celebrated case of Little Miami Rd. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep., 373, and compare Nelson Business College Co. v. Lloyd, 60 Ohio St. 448, 54 N.E. 471, 46 L.R.A., 314, 71 Am. St. Rep., 729.
Therefore, under the evidence in this case, we entertain the view that the trial court should have directed a verdict for the defendant at the close of the evidence, in response to her motion. The judgments of the Court of Common Pleas and of the Court of Appeals are reversed and final judgment is rendered for the defendant.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.