Karahleos v. Dillingham , 119 Me. 165 ( 1920 )

Dunn, J.

Range of this action is delimited by an agreed statement of facts. A statute imposes that persons associating themselves as partners in any mercantile enterprise shall deposit, in the office of the clerk of the city or town in which business is to be carried on, a certificate signed and sworn to by them, setting forth their names and places of residence, the nature of the business in which they intend to engage, and giving the name under which they are to transact business. Each constituent “shall conclusively be presumed to bo a member of the firm” to the time of his filing, in said clerk’s office, certificate of withdrawal from such relationship. R. S., Chap. 39, Secs. 11, 15.

On February 10th, 1916, Harry A. Dillingham and Walter E. Luce, both of Lewiston, filed notice in the office of the clerk of that city that partnership existed between them by the style of Saxon Motor Company. After doing business, this partnership was dissolved by the retirement of Mr. Luce, who failed to attest that fact to the clerk for record. The remaining member, Mr. Dillingham, and one Burkett, promptly entered into co-partnership, adopting for descriptive appellation the old-time firm name. While Dillingham and Burkett were thus carrying on business, an automobile belonging to them, and driven at the time by their employee, collided with plaintiff who, as a pedestrian, was crossing a public street. To recover damages for resulting personal injuries sustained by him, he brought this suit against the members of the original partnership. As a matter of form, it was ruled by the presiding Justice, that in view of recorded partnership certificate, and in consequence of delinquency in not filing withdrawal certificate, Mr. Luce was properly named as a defendant. To this ruling the defendant Luce has exceptions.

It is unnecessary to consider whether the agreed statement is entitled to the force of recital that defendants, at the beginning of a mercantile partnership filed requisite certificate-agreeably to statutory command, for, be that as it may, plaintiff’s case yet falls short of judicable rank. Besides partnership, or estoppel to deny partnership, other indispensable elements must be proved. A master is liable to third persons for all damages consequent from the negligence of his servants, where, if there were neglectful act or omission on the part of the servant, it was while he was acting under the orders of the master, or in the course of the master’s business. Maddox v. Brown, 71 Maine, 432. Under the doctrine of respondeat superior, in order to hold one person responsible in damages for the negligence of another, it must be shown, among other things, that at the time, and in respect to the very occurrence out of which the injury arose, the relation of master and servant existed between the defendant and the wrong-doer. Higgins v. Western Union Tel. Co., 156 N. Y., 75. There is nothing of the sort here. Even were the driver of the automobile, at the time of the accident, acting in the course of her employers’ business, they would not be hable if she would not be hable, were the action against her, and she had acted for herself instead of for them. New Orleans Railroad Co. v. Jopes, 142 U. S. 18, 35 Law Ed,, 919. For all that appears, the accident complained of may have been inevitable, or, if neghgence were the proximate or efficient cause, such negligence may have been on the part of plaintiff himself. Kennard v. Burton, 25 Maine, 39.

Exceptions sustained. Action dismissed in accordance with stipulation in agreed statement.