§ 76. Husband and Wife-Joint Liability.-Husband or wife may sustain the relation of agent to each other, so as to make either liable for the torts of the other. Under the modern statutes the wife may appoint her husband her agent, and hence may be civilly answerable for personal injuries inflicted by her husband while acting within the scope of his authority as her agent, although such acts are not committed in her presence.63 § 77. Parent and Child-Joint Liability.-A general proposition of law, well settled and understood, is, that a parent as such is not responsible for the independent tort of his child; that is, there is nothing in the relationship alone that makes the parent liable."4 The parent can only be held when the child acts for the former rather in the capacity of agent or servant, in which case the ordinary rules of agency apply. So may the parent be held in other cases not involving these principles, as where the parent ratifies or adopts the acts of the child, or in some way acquiesces in the wrong. If an act is committed with the father's consent, or in connection with the father's business, the latter is liable.65 With respect to some wrongs by infants, the courts have expanded the foregoing rules, and have held that where the tort could hardly have been committed without the knowledge or approbation of the parent, in such cases it is the parent's duty, especially where the minor resides with, and is under the control of, the parent, to restrain 63 Shane v. Lyons, 172 Mass. 199, 70 Am. St. Rep. 261, 51 Atl. 976. 64 Smith v. Davenport, 45 Kan. 423, 23 Am. St. Rep. 737, 25 Pac. 851; Schouler on Domestic Relations, sec. 263. See Schlossberg v. Lahr, 60 How. Pr. 450; Chandler v. Deaton, 37 Tex. 406. 65 Smith v. Davenport, 45 Kan. 423, 23 Am. St. Rep. 737, 25 Pac. 851. 67 66 him, and failing so to do, he is liable; or where the father being present with his son and able to prevent a tort by the latter, his failure so to do renders him liable. If a son takes the father's team, however, without restriction, for his own use, this will not render the parent liable for the negligence of the son in leaving it unfastened in the street.es Nor is the father liable for negligently permitting his son to have a loaded gun, where the son carelessly shoots another." Nor can the father be held liable for a wrong caused by the child's vicious and destructive temper, upon the ground that he knows of his son's disposition.70 In Louisiana, the rule of the civil law prevails, the father being held liable for acts of his minor child on account of his mere relation to him. So where, in celebrating New Year's Day, a child intentionally or carelessly shoots another in the street, the father is held liable. And where, in celebrating Christmas, a child shoots off a Roman candle into a crowd and injures an eye of a bystander, the father is liable, although he is absent from the ground at the time of the act. The theory of the civil law is to make the husband liable for an injury occasioned by a shooting by a child, a brother of his wife with whom he lives, which occurs during his absence from home, but at the 72 66 Beedy v. Reding, 16 Me. 362; Hoverson v. Noker, 60 Wis. 511, 50 Am. Rep. 381, 19 N. W. 382; Strohl v. Levan, 39 Pa. St. 177. But this is not always so: Edwards v. Crume, 13 Kan. 348. 67 Strohl v. Levan, 39 Pa. St. 177; Lashbrook v. Patten, 1 Duvall, 316 (to picnic); Schaefer v. Osterbrink, 67 Wis. 495, 58 Am. Rep. 875, 30 N. W. 922 (driving family to church). 68 Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336. 69 Hagerty v. Powers, 66 Cal. 368, 56 Am. Rep. 101. 70 Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381; Baker v. Haldeman, 24 Mo. 219, 69 Am. Dec. 430. 71 Marionneaux v. Brugier, 35 La. Ann. 13. 72 Mullins v. Blaise, 37 La. Ann. 92. direction of the wife.73 In such case it is said that the father would also have been liable under the code on the ground that the one having control could have prevented the act and did not. The child being liable for his own torts, it follows that even when he acts under command or as agent or servant of his parent, he is liable,76 and both parent and child are then jointly liable. § 78. Partnership-Liability for Torts.—That a partnership is considered as a legal entity or as a quasi person will not be questioned. In all matters pertaining to the partnership business, each partner is regarded as the agent of the firm, the latter being bound by all acts of the individual members within the legitimate scope of their powers. The partnership liability for contractual obligations entered into by one member is clear. Should this rule be applied to cases in tort? The cases are not numerous where it has been sought to hold the partnership entity liable for the torts of the individual members, though instances are found where such liability is enforced against the individuals. But it is clear that the partnership entity is liable for a tortious act committed by one of the members in the same manner as if the act had been performed by an outside agent to whom is committed some duty to perform on behalf of the partnership. If a tort be committed by one partner while engaged in a transaction within the scope of the partnership business and such tort be committed in furtherance of the interests of the partnership, it will be liable. But it 73 Cleaveland v. Mayo, 19 La. 414. 74 Cleaveland v. Mayo, 19 La. 414. 75 Ante, sec. 22. 76 Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177; Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457. will not be liable for a tort committed by one partner in a transaction outside of the partnership business, where he acts from his own private malice or ill-will, unless the act itself has been done in their behalf and interest. A partnership as an entity is liable to an action for a tort committed by the concurrent action of all its members." The joint liabil ity of the partners is next considered.78 are § 79. Partners - Joint Liability. - Partners agents for the firm, having power to do whatever is necessary for the accomplishment of the partnership purposes, and the firm is therefore liable for the tort of either or any partner committed within this limitation. And hence they are jointly liable. Partners are liable "in solido" for the tort of one, if committed by him as a partner and in the course of partnership business, whether all know of the act or not.80 So if one partner in the name of the firm makes a false representation of fact, the firm and its other members are equally bound, if the fact is such as to bind the firm if true;$1 as where one member fraudu 77 Page v. Citizens' Banking Co., 111 Ga. 73, 78 Am. St. Rep. 144, 36 S. E. 418. 78 See sec. 79, post. 79 Williams v. Hendricks, 115 Ala. 277, 67 Am. St. Rep. 32, and note, 22 South. 439; Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; Mode v. Penland, 93 N. C. 292; Hall v. Younts, 87 N. C. 285; Durant v. Rogers, 87 Ill. 508; Hobbs v. Chicago etc. Co., 98 Ga. 576, 58 Am. St. Rep. 320, 25 S. E. 584. 80 McIlroy v. Adams, 32 Ark. 315; Page v. Citizens' Banking Co., 111 Ga. 73, 78 Am. St. Rep. 144, 36 S. E. 418. 81 Coleman v. Pearce, 26 Minn. 123, 1 N. W. 846; Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380; Peckham Iron Co. v. Harper, 41 Ohio St. 100; Strang v. Bradner, 114 U. S. 555, 5 Sup. Ct. Rep. 1038; Walker v. Anglo-American etc. Co., 72 Hun, 334, 25 N. Y. Supp. 432; White v. Sawyer, 16 Gray, 586; Morehouse v. Northrop, 33 Conn. 380, 89 Am. Dec. 211; Stanhope v. Swafford, 80 Iowa, 45, 45 N. W. 403; Stewart y. Levy, 36 Cal. 159. Compare Bienenstok v. Ammidown, 155 N. Y. 47, 49 N. E. 321. 82 lently obtains goods in the name of the firm, not intending to pay for them, and fraudulently disposes of them; or where one member makes misrepresentation in the sale of goods; 83 or where one partner obtains a fraudulent judgment and execution on land and sells the same to his partners, who are ignorant of the fraud;84 or where one procures money for the firm by a note to which he forges another name.85 So where a partner, who obtains money or goods regularly in the due course of business, refuses to return them, but converts them to his own use, the firm may be held either for money had and received, or in tort for conversion.86 Partners may be held for conversion for the wrongful delivery of goods in their possession.87 The firm is liable for the trespass of one member although the other member does not go upon the land.88 Professional partnerships, such as physicians and surgeons, and attorneys, are jointly liable for negligent exercise of their duties when within the scope of their business.90 And if one partner should die pending an action for malpractice, the same may be continued against the surviving part 82 Banner v. Schlessinger, 109 Mich. 262, 67 N. W. 116. 85 Manufacturers' etc. Bank v. Gore, 15 Mass. 75, 8 Am. Dec. 83. 86 Holbrook v. Wight, 24 Wend. 169, 35 Am. Dec. 607; Nisbet v. Patton, 4 Rawle, 120, 26 Am. Dec. 122; Harvey v. McAdams, 32 Mich. 472; Guillow v. Peterson, 89 Pa. St. 163; Palmer v. Scott, 68 Ala. 380; Cunningham v. Woodbridge, 76 Ga. 302; Stevens v. Faucet, 24 Ill. 483. 87 Hobbs v. Chicago etc. Co., 98 Ga. 576, 58 Am. St. Rep. 320, 25 S. E. 584. 88 Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 851; Oak Bridge Coal Co. v. Rogers, 108 Pa. St. 147; Robinson v. Goings, 63 Miss. 500. 89 Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632. 90 Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55; Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15. |