Meehan v. Hesselgrave

Mitchell, J. Plaintiff instituted this action against James Hesselgrave and Claude Smith, as partners, doing business under the firm name of Hesselgrave and Smith, for damages for personal injuries received by him, caused by the alleged negligent operation by one of their employees of an automobile, in backing the car out of a garage onto the sidewalk on which the plaintiff [569] was walking, in Snmas, Washington. The answer signed by the attorney for the defendants, and verified by Hesselgrave only, consisted of general denials coupled with a specific allegation denying that the car belonged to or was being operated for them, but that it belonged to and was being Qperated for Hesselgrave on his own account, and that Smith had no interest in the car and was in no way connected with the operation of it; and further the answer contained the affirmative defense of contributory negligence, which latter was denied by the reply. A jury trial resulted in a verdict against the defendants; and from a judgment thereon, appeals have been taken. The only testimony that Smith was a partner was that of the respondent that he understood Hesselgrave and Smith owned the car, and the attempt on his part in his testimony to confirm that statement by putting in evidence, over objections, a printed schedule, posted in Sumas, of a stage run, for which the automobile was used, with the name of Hesselgrave and Smith printed at the bottom. It was upon this testimony and the court’s instructions, duly excepted to, concerning the rule of one being held out to the public as a co-partner, that the verdict and judgment against Smith rest. There was no testimony that appellant Smith knew anything whatever at any time of the advertising card, or that he ever resided or was ever in the county of Whatcom. The complaint alleged that the defendants were partners, and, under the general and specific denials of the answer, the burden was on the respondent to prove it. In order to hold Smith liable as a partner, upon the theory of the respondent and the court’s instructions, it must satisfactorily appear that the alleged act of holding out was done by Smith or with his assent, express or implied. 30 Cyc., Partnership, page 393. [570] There was no such testimony; just simply the posting of the schedule of the stage line. In the case of First Nat. Bank of Gainesville v. Cody, 93 Gra. 127, 19 S. E. 831, in seeking to show a partnership, copies of an advertisement were offered in evidence, purporting to have heen inserted by the firm in a newspaper published in the city in which the alleged partnership business was conducted. The dates of some of the insertions were prior to that of the contract in question. Upon referring to the fact that there was no evidence in the case to show that the advertisements were inserted by the Codys, or with their knowledge, or that they acquiesced in the same, the court said: “It would be a dangerous doctrine to hold that a person could be held liable upon alleged partnership contracts by simply proving, without more, he had been advertised as a partner. Such a rule would operate rather harshly upon one who had never seen or heard of the advertisement, and consequently had had no opportunity to repudiate it in case it did not speak the truth. ’ ’ Further argument is made on behalf of appellant Smith that the doctrine of estoppel against one permitting himself to be held out as a partner, when in fact he is not a partner, applies only in favor of one who extends credit to the concern. We find it unnecessary to discuss the subject, for the evidence upon that question is not sufficient in either view. The second branch of the case relates to the appeal on behalf of Hesselgrave; and it is contended that the evidence was not sufficient to sustain any verdict against him. There was some conflict in the evidence. Without reviewing it, we are satisfied that it was properly allowed to be decided by the jury upon both the charge of negligence and the defense of contributory negligence. [571] The second assignment rests upon the refusal of the court to give a requested instruction holding the respondent liable if he erred in judgment. The instruction as requested is somewhat different from that set out in appellant’s brief; however, the one requested was properly refused, the standard being reasonable and ordinary care. Gage v. Springston Lumber Co., 47 Wash. 141, 91 Pac. 558. Exception was taken to the instruction on the subject of future pain and suffering. Altogether the instruction is lengthy, and it is sufficient to set out the portion objected to, which is as follows: “You will also take into consideration the physical pain, if any, suffered by the plaintiff, or which he may hereafter suffer as a result of the injury, if any, as shown by the evidence. ’ ’ The criticism is that the instruction does not limit the recovery for future pain and suffering to such as will be reasonably certain to result from the injury. The appellant requested no different instruction on the subject; and while it is not the same, word for word, with the instruction on this subject approved in the case of Ongaro v. Twohy, 49 Wash. 93, 94 Pac. 916 (which we suggested in Bennett v. Oregon-Wash. R. & Nav. Co., 83 Wash. 64, 145 Pac. 62, as preferable) it is sufficient according to the doctrine of the more recent case of Kane v. Nakamoto, 113 Wash. 476, 194 Pac. 381, for the reasons therein given. The motion for a new trial on the part of the appellant Hesselgrave requires no separate consideration. It was properly denied. Judgment reversed as to appellant Smith, with directions to dismiss; affirmed as to appellant Hesselgrave. Parker, C. J., Main, Bridges, and Tolman, JJ., concur.