Teague v. Martin , 228 Mass. 458 ( 1917 )

De Courcy, J.

The plaintiff, while riding a bicycle in Powder House Square, Somerville, was struck by a motor truck owned by both defendants as copartners, and driven at the time by the defendant Clark. No dispute arises as to the plaintiff’s due care or Clark’s negligence. The question of Martin’s liability is raised by his exceptions to the judge’s refusal to give the rulings requested by him numbered one, two, three and ten.

There was evidence which warranted the submission of that issue to the jury. The truck was owned by the partners, used for partnership business, registered in the firm name, and had “Martin & Clark” inscribed thereon. One of the partners was operating it at the time of the accident. All of the business of the firm on that day consisted of two roofing jobs in Watertown and Newton, and a gang of six men had been sent to do the work under the exclusive direction of a foreman. The defendant Martin was in New Hampshire on his vacation. Clark, who never had used the truck except on firm business, on his own testimony had been out with it for more than two hours, and was returning to his place of business from the direction of Newton when the collision occurred. There was testimony that there were kegs in the truck at the time. The jury well might discredit his statement that he was using this business truck solely for pleasure driving, and had driven only six or seven miles; and could infer from the facts in evidence that he was returning from an inspection of one or both of the partnership jobs, made in the absence of his copartner. Heywood v. Ogasapian, 224 Mass. 203. These four requests were denied rightly.

The fourth request was: “If the defendant Clark without the knowledge or consent of the defendant Martin, took the auto truck and went for a ride on his own personal account and in no way on account of the business of the firm, and while so engaged collided with the plaintiff’s bicycle, the defendant Martin will not be liable.” The judge gave this, but added, against the objection of the defendant, “unless he had authorized such use for general purposes of pleasure.” Martin’s exception to this modification of his request was well taken. He would be liable for a tort committed by Clark in the course and within the scope of the business of the firm. This is on the principle that partners are the general agents of each other while so transacting the partnership business. Moreton v. Harden, 4 B. & C. 223; S. C. 6 Dowl. & Ry. 275. Linton v. Hurley, 14 Gray, 191. Fennell v. Peterson, 225 Mass. 598. But in committing a tortious act which is outside of the agency or common business a partner acts only for himself, and he alone is responsible for the consequences. And the mere fact that an agent, while using the motor car of his principal for his own pleasure, is doing so with the permission of said owner, does not make that owner liable for the wrongful acts committed by the agent. A loan of the machine does not carry with it a responsibility for the negligent conduct of the borrower. Herlihy v. Smith, 116 Mass. 265. Marsal v. Hickey, 225 Mass. 170. See Reynolds v. Denholm, 213 Mass. 576.

We cannot say that the error in thus modifying the fourth request was a harmless one. It permitted the jury to find Martin responsible for Clark’s negligent operation of the car, even if they credited Clark’s story that he was indulging in a pleasure drive and was using the truck for a purpose in which his copartner had no interest. This exception must be sustained, and it is

So ordered.