Kelley v. London Guarantee & Accident Co.

ELLISON, J. — This action is based on a policy of indemnity insurance. The judgment in the trial court was f,Qr the plaintiff. It appears that plaintiff and his brother William were partners in the cooperage business in the State of Kansas under the firm name of “J. R. Kelley & Brother.” That in the prosecution of their business they employed a number of men, among them one Ford. Some hazard being connected with the business they took from defendant a policy of insurance, whereby defendant, in consideration of certain warranties and $112 premium, agreed “to indemnify J. R. Kelley and Brother” for the term of one year, “against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered by any employee,” etc., on account of the negligence of the assured. The policy provided that: “No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a jticlgment after trial of tl%e issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damages unless at the expiry of such period there is such an action pending against the assured, in which case an action may be brought against [626] the company by the assured within thirty days after final judgment has been rendered and satisfied as above. ’ ’ During the life of the policy Ford and J. R. Kelley were engaged in experimenting with a machine belonging to the firm, when Ford was injured. He thereafter sued the partnership in the State of Kansas charging liability to him on account of negligence which he set fq.rth in his petition. This defendant was notified of the suit and took part in the trial which resulted in a judgment for Ford for $1,000 against both members of the partnership. A motion to set aside the verdict and grant a new trial was filed and sustained as to "William Kelley, but overruled as to plaintiff herein, J. R. Kelley. ' The latter appealed to the Court of Appeals in Kansas where the judgment was affirmed. After the court set aside the verdict as to William ánd rendered judgment against J. R. alone, this defendant took no further part in the case, claiming that it was only liable for that which the partnership was liable for to the employee. Afterwards, J. R. Kelley paid the judgment, interest and costs to Ford and then brought the present action against defendant on the policy and obtained judgment as aforesaid. Defendant seeks to avoid the judgment on the ground that the partnership was not adjudged liable for the accident to Ford, it being a part of defendant’s contention that the court in Kansas by setting aside the verdict as to William Kelley and rendering judgment against J. R. alone, decided that the liability to Ford was not a partnership liability. We are of the opinion that where the contract of indemnity is to indemnify for loss occasioned by accidents to employees of a partnership for negligence of the partnership, in order to render the insurer liable the accident must happen to the employee-while engaged in work for the partnership and by reason of the negligence of the partnership; and that this must be made to appear by the judgment of the proper court. A partnership is a separate legal entity from the individual [627] members composing it. Clark v. Laird, 60 Mo. App. 289; Curtis v. Hollingshead, 2 Green. 403; Henry v. Bergner, 77 Ind. 361; Robertson v. Caswell, 39 Mich. 737; Rope v. Herron, 15 Neb. 73; Cross v. Bank, 17 Kan. 336. And when one agrees to indemnify a partnership for damages resulting to it on account of its negligence, he does not become liable for loss to an individual for his individual negligence, as such, as distinguished from such negligence as would render the partnership liable as such. We are not unmindful that the negligent act of the individual member becomes the act of the partnership when committed in due prosecution of the partnership business. Dudley v. Love, 60 Mo. App. 420; Linton v. Hurley, 14 Gray 191. But in order to render liable an indemnitor like this defendant, it must be made to appear that the negligent act of the individual member .was such an act as made it the act of the partnership. In this case a court of competent jurisdiction refused to enter judgment against one of the two members of the partnership, but did enter it against the other as an individual. It does not appear what the reasons of the court were for such action; but it must have been on the ground that the negligent act of J. R. Kelley was not the act of'the partnership and therefore not binding on William. However that may be, certainly the proceedings had in the case, taken' as a whole, do not make it appear that the partnership was liable. The result of the foregoing views is to reverse the judgment. All concur.