* Headnote 1. Partnership, 30 Cyc, p. 823; 2. Partnership, 30 Cyc, pp. 524, 525; 3. Partnership, 30 Cyc, pp. 524, 593. This suit is by the widow and child of deceased for the alleged willful, reckless, and negligent killing of deceased by Russell, a member of the copartnership of Weeks Russell.
The material averments of the declaration are that J. D. Weeks and Knox Russell are partners engaged in *Page 73 the retail drug business in the municipality of Ackerman; that deceased, Gan D. Idom was employed by the Illinois Central Railroad Company and the Western Union Telegraph Company to look after their business at night, with offices in the depot of the town; that prior to the killing of deceased there had been several robberies committed in the town, and several stores had been broken into, and that a strict watch was being maintained in the town for the purpose of apprehending any burglars; that on the night of June 20, 1920, the defendants laid a scheme whereby to capture the burglars, and with the full knowledge and consent of both partners they agreed and undertook to guard the partnership store, and to guard the partnership property from depredation and loss; that Russell, as a partner, and with the knowledge, consent, and approval of his copartner, concealed himself in their store, heavily armed, with two other persons, all acting in the capacity as agents and employees of the said partnership, that these three men secreted themselves in the drug store of the partnership to await the coming of burglars; that about three o'clock in the morning of the 21st of June the deceased, Idom, from the depot, his place of business, saw what he supposed to be a light in the drug store, and, knowing of the recent burglaries, presumed some one was attempting to burglarize the drug store of the defendants; that he, with two companions, went from the depot over to the drug store to investigate; that as they approached the door of the drug store the defendant Knox Russell, without warning of any kind, recklessly, willfully, and carelessly, and negligently shot at the deceased, inflicting a fatal wound, from which Idom died about fifteen hours later.
There was a plea of the general issue by the partnership, and a special plea by J. D. Weeks, in which he alleged that he was not a partner of Russell in undertaking to defend the town of Ackerman or any particular property in the town against burglars; that he had no knowledge *Page 74 of and did not consent to the undertaking of Russell to guard or help guard the town or any particular property; neither did he agree or consent that Russell should guard the drug store of Weeks and Russell; that the act of Russell in undertaking the duties of a guard was his own individual act, and not the act of a partner for which the defendant Weeks was responsible. To this special plea there was a replication by the plaintiffs alleging that Russell at the time of the fatal shooting was acting within the scope of the partnership business by undertaking to guard and protect the partnership property.
The material part of the testimony relating to the unfortunate killing of Idom is as follows: The sheriff of the county testified that a few nights before, the post office and a store had been entered by burglars, and that in the early part of the night of the killing it was reported there were some suspicious characters in the town, and the sheriff and marshal, along with some other citizens, looked around. The defendant Russell was in the crowd. There was general excitement in the town because of the burglaries. That this party broke up about nine or ten o'clock. No one was deputized by the sheriff to guard the town that night. The sheriff was notified about the killing about four o'clock in the morning. When he reached the town Idom was in the depot. When he reached the depot he was informed that there was a dead man over in front of Weeks Russell's Drug Store. He then went over there, and found the body of Robert Quinn. Knox Russell told the sheriff that he shot Idom. Russell's statement was to the effect that some persons came to the door, and he took them to be burglars, and shot twice. The bullets went through two wire screen doors. Russell further stated to the sheriff that he had placed himself in the drug store under a bench near the front door to watch for burglars; that he thought they would get them that night. Two other men were in the *Page 75 store with Russell. Russell shot twice, fatally wounding Quinn and Idom.
The sheriff further testified that Weeks Russell were partners engaged in the drug business; that Russell principally attended to the business; and that Dr. Weeks stayed in the drug store sometimes, and probably filled some prescriptions, and occasionally waited on a customer, but the principal business of the partnership was conducted by Russell. The sheriff further testified that previous to that night, in all there had been about five or six houses and stores entered by burglars.
Garland Weaver was with Idom and Quinn at the time of the shooting. He testified that it occurred between three and four o'clock in the morning; that prior to the shooting the three of them were in the depot; that they saw over in the drug store a light two or three times which they took to be from a flash light; that they concluded to go over and investigate; that they tiptoed up to the front door of the drug store, and there Idom and Quinn held a whispered conversation for about five minutes. And then one of the men who was shot shook the lock on the door. After shaking it the first time, something was said between Idom and Quinn, whereupon the lock of the door was shaken again, and immediately the two shots were fired.
It was a very dark night, and evidently impossible to identify any one with whom you came face to face. This in brief was the material testimony introduced on behalf of the plaintiffs. At its conclusion, upon motion of the defendants, the testimony was excluded, and the peremptory instruction given on behalf of each defendant.
From a judgment in favor of the defendants this appeal is here prosecuted.
First, it is the contention of the appellant that the question of whether or not Russell willfully, recklessly, and negligently shot Idom, and is therefore liable therefor, under this testimony was one of fact to be decided by *Page 76 the jury; second, that at the time of the shooting Russell was guarding the property of the partnership, and preserving the corpus of the firm's business, and that this act was performed in the course of the business for the purpose of preventing a loss of its goods, and was therefore an act performed within the course of the business of the partnership, for which both partners are liable. As to the question of the liability of the defendant Knox Russell, the testimony of the plaintiff as set forth above was sufficient to submit it to a jury.
Second. Weeks and Russell were partners engaged in the drug business. The partnership and each member is, of course, liable for the act of one partner in the transaction of this business. There is no testimony to show that the members of the firm contemplated the guarding of the store at night. It does not show that they employed a night watchman for this purpose, nor that either or both members of the firm were expected to do this kind of police or guard duty. The ordinary partnership business of this character does not contemplate guarding the property during the dead hours of the night when the store is not open for the transaction of business. Dr. Weeks knew nothing of the plan of Russell to conceal himself in the store, and there watch for and try to apprehend any burglars. The admission of Russell to the sheriff was not that he was in the store for the purpose of trying to protect the property of the firm, but that he was there for the purpose of trying to apprehend and capture the burglars. According to this statement of Russell his dominant purpose was not for the preservation of the partnership property but rather to try and capture the burglars. The store is situated in the business part of the town where the other business stores are. The relationship existing between partners, and the liability of one partner for the act of another, is the same as the liability of the principal for the act of his agent. In other words, the ordinary rules of agency govern the liability of one partner for the act of another. *Page 77 If the act or tort of the partner be committed while he is engaged in the partnership business, and is in furtherance of the interest of the partnership, then the partnership and all partners are liable. This rule is well stated in the case of Page v. Banking Co. et al., 111 Ga. 73,77, 36 S. E. 418, 419, 51 L.R.A. 463 (page 469), as follows:
"One partner may be rendered liable for the acts of his copartner. Whether or not he is so liable is to be determined by the application of the rules governing the relation of principal and agent; and generally the partnership is liable for the act of one of the partners, if it would have been liable had the same act been committed by an agent intrusted by the firm with the management of its business. 17 Am. Eng. Enc. Law (1 Ed.), 1066. 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 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 which constituted the tort was authorized by the members of the partnership, or subsequently ratified by them; the act itself having been done in their behalf and interest. Mechem, Partn., sections 204, 205; T. Parsons, Partn. (4th Ed.), sections 100, 102, 105; 1 Bates, Partn., section 461; 1 Lindley, Partn., sections 149, 150; 1 Jaggard, Torts, section 99; Barbour, Partn. (2 Ed.), p. 350, chapter 2, section 13. The authorities just cited establish simply that, as a partnership is an aggregation of individuals, where each one is the authorized agent of the others to perform any act within the scope of the partnership enterprise, if one of them, in the prosecution of the business of the partnership, be guilty of a willful wrong towards another, the other partners will be liable, and that, if one partner is guilty of an act outside of the partnership business which causes any injury, the other partners will not be liable, unless it appear that such act was *Page 78 expressly authorized by them, or, after the same had been performed in their behalf and interest, they had either expressly ratified the same or knowingly received the fruits of the wrongful act."
It was not within the scope of the partnership business, and the ordinary partnership agreement does not contemplate, that one partner, when the place of business is closed for the night, shall go to the store and there conceal himself to try and capture burglars.
The Mississippi authorities relied upon by appellant areHeirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588, and Robinson Pattison v. Goings, 63 Miss. 500.
In the Heirn Case, supra, the tort of the partner complained of was with reference to the business of the firm and an incident to its business.
In the Goings Case, supra, the court said that in the seizure of the cotton "Pattison acted . . . as the agent of the firm; it was in the prosecution of the firm's business and under claim of title for the firm that he seized the cotton and placed it in their warehouse. Under these circumstances Robinson, even though he personally took no part in the illegal act, was equally liable at the suit of the owner" — (Citing authorities.) In that case Pattison was clearly transacting the usual business of the firm, namely, in collecting accounts and taking possession of the firm's property.
The correct rule is also well stated in the case of Marks v.Hastings, 101 AIa. 165, 13 So. 297, as follows:
"Though a partnership is responsible for the wrongful act of one of its members, committed in the course, and for the purpose of transacting the partnership business, the willful tort of one partner, when not so committed, is not imputable to the firm."
"Course of business" as defined in Bouvier's Law Dictionary, Rawles Third Rev., is "what is usually done in the management of trade or business." The act of Russell in this case was not committed within the course of business of the partnership. *Page 79 In the case of Persons v. Oldfield, 101 Miss. 110, 57 So. 417, this court said:
"The authority of one partner to bind his copartner is placed solely upon the ground of agency, and hence one can bind the other only within the scope of the agency."
The same doctrine applies to the liability of the master for the tort of the servant. In the case of Hines v. Cole, 123 Miss. 254, on page 264 (85 So. 199, 200), the court there stated that the injured employee could not recover because "Cannon [the employee who committed the assault] was not acting within the course of his employment and with a view to his master's business."
The court was correct in giving a peremptory instruction in favor of Dr. Weeks, but committed error in giving one in favor of Russell.
Affirmed as to Weeks, and reversed and remanded as to Russell.