It must be conceded that at common law there would be no liability upon a partner for a tort committed by another partner outside the scope of the partnership business. Therefore, the problem is, has either the partnership act or the owners' liability act changed the situation. The majority opinion rests chiefly on the owners' liability act; but since the two acts, in my opinion, are involved in a determination of the question, I shall discuss them in what seems to me to be their logical sequence.
1. The uniform partnership act, passed in Minnesota in 1921, 2 Mason Minn. St. 1927, § 7396, adopted the common-law rule:
"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."
It has been argued that the phrase "or with the authority of his co-partners" extended the common-law rule so as to impose tort liability on a partner who merely consents to a nonpartnership enterprise by another partner. The cases decided after the act do not so construe the phrase. Treon v. Shipman Son, 275 Pa. 246, 119 A. 74; Steen v. Gleeson, 197 Wis. 68,221 N.W. 374; Crane, Partnership, p. 225. Furthermore, the word "authority" connotes much more affirmative action on the part of the non-negligent partner than mere consent, which concededly is all there is here upon which to predicate defendant's liability. The rule I believe to be correct is succinctly stated in Treon v. Shipman Son, 275 Pa. 246, at p. 249, 119 A. 74:
"If a partner commit a tort, not as a partner, but as an individual, in respect to a matter entirely foreign to the business of the partnership, the other partner is not liable unless he either authorized or adopted the wrongful act." *Page 321
There is here no contention that Winquist authorized or adopted Sampson's careless driving.
At common law, partners are co-owners of specific partnership property. Teague v. Martin, 228 Mass. 458, 117 N.E. 844. It is well settled that co-owners of a vehicle are not liable for injuries caused by the negligent operation of another co-owner. Leppard v. O'Brien, 225 A.D. 162, 232 N.Y. S. 454; Mittelstadt v. Kelly, 202 Mich. 524, 168 N.W. 501; Martin v. Schiska, 183 Minn. 256, 236 N.W. 312; Bunnell v. Vrooman,250 Mass. 103, 145 N.E. 58; Caplan v. Caplan, 243 A.D. 456,278 N.Y. S. 475, affirmed in 268 N.Y. 445, 198 N.E. 23,101 A.L.R. 1223; 21 Minn. L.Rev. 829.
The partnership act provides that partners are co-owners of specific partnership property as tenants in partnership. 2 Mason Minn. St. 1927, § 7408(1). See Windom Nat. Bank v. Klein,191 Minn. 447, 254 N.W. 602. The statute does not define tenancy in partnership, nor does it change the common-law relationship of partners to partnership property other than to list as incidents of the tenancy, § 7408 (2): (a) Equal right of all partners to possess partnership property for partnership purposes, but no right to possess it for nonpartnership use without consent of the other partners; (b) nonassignability; and (c) nonattachability of individual partner's interest in partnership property; (d) survivorship in remaining partners upon death of one; (e) individual partner's interest not subject to dower and the like. These provisions have no relevancy to the issue here raised. Therefore, the previous rules of law and equity must govern. 2 Mason Minn. St. 1927, § 7388. There has been much stress upon the fact that under (a) above, Winquist could rightfully have objected to Sampson's personal use of the partnership truck. So could he before the act, 20 R.C.L. pp. 910-911, and certainly there would have been no liability then even though he had consented. The remedy of one partner against another for nonpartnership use of partnership property was under the common law, and is, under the act, § 7405(a), the right to a formal account as to partnership affairs. *Page 322 Thus it is obvious that under the partnership act Winquist and Sampson were co-owners of the truck, regardless of the use to which one of them might put it, with or without the consent of the other.
The owners' liability act, 3 Mason Minn. St. 1938 Supp. § 2720-104, reads as follows:
"Whenever any motor vehicle * * * shall be operated upon any public street or highway of this State, by any person otherthan the owner, with the consent of the owner express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof." (Italics supplied.)
To read into the above statute after the words "other than the owner" the words "who consents" is, at best, a guess at what the legislature would have provided had the precise situation occurred to it. It is also a concession that Sampson was a co-owner and therefore not properly within the purview of the statute. Ordinarily courts should not read into the statute something that is not there. Statutory amendment should be by the legislature and not by the court. This is especially true of statutes in derogation of the common law. 6 Dunnell, Minn. Dig. (2 ed. Supps.) § 8958. Furthermore, co-ownership of automobiles is common, and it seems that if the legislature had chosen to create a new rule on the liability of co-owners it would have done so.
I am sustained in my construction of the two acts by the cases most nearly like the one at bar that have been called to our attention or that we have found. They are Caplan v. Caplan,243 A.D. 456, 278 N.Y. S. 475, affirmed in 268 N.Y. 445,198 N.E. 23, and Wadsworth v. Webster, 237 A.D. 319,261 N Y S. 670. In the Caplan case, an auto was owned by the copartnership, E. Caplan Son. Plaintiff was the wife of partner Hyman Caplan, who was driving the partnership car and whose negligence caused her injury. The court cited both the partnership act and the owners' responsibility act. The New York partnership act is virtually identical to that of Minnesota. The provisions *Page 323 their law imposing liability on auto owners for injuries caused by negligence of a person "other than the owner" operating the vehicle with the owner's consent (§ 59, Vehicle and Traffic Law) are similar to ours, 3 Mason Minn. St. 1938 Supp. § 2720-104. It is the only statute in all of the seven states which have adopted this type of owners' responsibility law that bears any similarity to our own, and, it having been passed prior to ours, was doubtless the pattern upon which ours was drawn. The New York court held the owners' responsibility act [243 A.D. 458, 278 N.Y. S. 477] "not applicable in the present case because the defendant Hyman Caplan was a co-owner of the car." The Wadsworth case. 237 A.D. 319,261 N.Y. S. 670, is in accord. On appeal of the Caplan case [268 N.Y. 445,198 N.E. 23], the New York court of appeals did not mention the owners' responsibility act, but affirmed on the ground that a wife cannot maintain an action against her husband, and under the express provisions of the partnership act the partnership is liable only to the same extent as the negligent partner. Belleson v. Skilbeck, 185 Minn. 537, 242 N.W. 1, is to the same effect. Both cases are discussed in Miller v. J. A. Tyrholm Co. Inc. 196 Minn. 438, 444, 265 N.W. 324. Respondent argues that because New York's highest court did not mention the owners' responsibility act it must be deemed to have not accepted the lower courts decision on the point. However, to attain its result, the New York court must have assumed that ownership of the vehicle by the partnership was ownership by the individual partners as co-owners, for otherwise the owners' responsibility act would have been applicable. It seems to me that the decision of the court of appeals in the Caplan case [268 N.Y. 445, 198 N.E. 23] is a tacit holding that the incidents of partnership and ownership of partnership property are necessarily to be found in the partnership act and that partnership property belongs to the partners as co-owners, and that therefore the owners' responsibility act had no application.
I think the orders should be reversed. *Page 324