Morrow v. Adams

Jordan, Presiding Judge. The present appeal is a sequel to Morrow v. Henley, 122 Ga. App. 646 (178 SE2d 308). On a jury trial limited to a determination of whether the defendant Adams was a partner of the defendant Henley, with Henley acting within the scope of the partnership at the time of the collision, the jury found for Adams. The plaintiff, Morrow, appeals from the judgment eliminating Adams as a defendant in her personal injury action. Held: 1. It is contended that the trial judge incorrectly charged the applicable law of partnership and in effect directed a verdict for the defendant, Adams, by instructing the jury as follows: "So, ladies and gentlemen, if you find that any sums paid by the defendant Henley to defendant Adams were merely for reimbursement for material and/or sums owed defendant Adams, then, there would be no partnership and you would return a verdict for the defendant Adams.” These instructions were immediately preceded by the substance of Code §§ 75-101, 75-102, plus the common law rule of partnership liability set forth in Rogers v. Carmichael, 184 Ga. 496 (1) (192 SE 39). Following the instructions complained of the trial judge also made it clear that if Adams advanced money or materials and also was to share the profits and losses of the business, a partnership could exist, and if Henley was acting within the scope of this partnership at the time of the collision, the jury should find against Adams. Under the evidence there is no doubt that Adams acted as a financier in providing credit for Henley to conduct the business, through the use of his accounts, including a bank credit card, and by providing him with the truck involved in the collision, but the evidence is conflicting as to whether this was merely a creditor-debtor relationship, including the sale of the truck to Henley on credit, whereby Henley would pay for the truck and satisfy other debts to Adams, or incurred in the name of Adams, from the income of his business, including any profits, or whether Adams was actually receiving profits from the business under an arrangement which constituted a partnership. Argued February 2, 1971 Decided May 17, 1971 — Rehearing denied June 15, 1971 — L. B. Kent, for appellant. Kelly, Champion & Henson, Edward W. Szczepanski, Jr., for appellees. Considered in context, and viewed in the light of the evidence, we think the instructions on the law of partnership were adequate and that the excerpt complained of discloses no basis for reversible error. 2. The evidence supports but does not demand the verdict, and no harmful error appears for any reason argued and insisted upon. Judgment affirmed. Bell, C. J., Hall, P. J., Eberhardt, Deen, and Whitman, JJ., concur. Pannell, Quillian and Evans, JJ., dissent.