
    JOHN C. JEWISON v. EMIL DIEUDONNE and Others.
    
    October 16, 1914.
    Nos. 18,703—(222).
    
    Customer not a bare licensee on premises.
    1. Where plaintiff, a farmer, was injured by an automobile, while he was passing through the rear portion of a village automobile repair and farm implement shop in order to transact business in the front, the fact that he reached the place where he was injured by passing through a rubbish-strewn alley and the rear entrance of the building, did not, upon the facts of the case, constitute him a bare licensee so as to preclude him from invoking the rights of one upon premises by invitation.
    Question for jury.
    2. Whether an employee of the repair shop who was handling the automobile at the time of the accident was guilty of negligence, held for the jury.
    Same — contributory negligence.
    3. The question of negligence on plaintiff’s part was also for the jury.
    Partnership between defendants.
    4. The fact that two of defendants were sued as copartners did not make a recovery necessarily depend upon the establishment of such relation.
    Same.
    5. Where there is a holding out of a partnership relation concerning the control of a place where business is transacted, and an invitation extended under such circumstances of publicity as to warrant the inference that a person, subsequently injured therein through the negligence of an employee of those in charge, must have had the right to believe that those extending the invitation were in control of the premises, a recovery may be had without regard to the actual existence of the partnership relation; liability in such case, however, "depending not wholly upon the doctrine of estoppel nor that of respondeat superior, but upon the assumption of a definite status with reference to the property and a specific relation to the person injured, to which the law attaches direct and positive duties.
    Note. — Liability of partnership for torts, see note in 61 L.R.A. 463.
    
      Action in the district court for Waseca county to recover $25,750 for personal injury from an automobile owned and in the control of defendants. The case was tried before Childress, J\, who when plaintiff rested denied the motion of defendants Dieudonne to dismiss the action as to them and at the close of the testimony their motion for a directed verdict. That part of the charge to the jury which referred to the subject of invitation to the plaintiff [see page 167] was as follows :
    “If the plaintiff was a bare licensee upon the premises, the proprietor was not bound to exercise any care towards him except to refrain from wanton and wilful negligence. Was the plaintiff on the premises with the consent and invitation, express or implied, of the proprietor ? If so, the proprietor was bound to exercise a reasonable degree of care to avoid injuring him. If you find from the evidence that it was plaintiff’s habit and the habit and practice of others to go on to these premises as the plaintiff did, and this practice was known to the proprietor and he made no objection to it, and the plaintiff was there by reason of such custom, then you may find that the plaintiff was there by the invitation and consent of the proprietor. If you find such to be the case, then it was the proprietor’s duty to exercise ordinary care under the circumstances as they existed for the safety of the plaintiff, and the test of such care should be what an ordinarily careful and prudent man engaged in work of that kind under the same or similar circumstances would have done.”
    The jury returned a verdict for $6,250 in favor of plaintiff. From an order denying their separate motions for judgment notwithstanding the verdict or for a new trial, defendants appealed.
    Affirmed.
    
      J. P. Kyle and P. McGovern, for appellants.
    
      L. D. Rogers and Moonan & Moonan> for respondents.
    
      
       Reported in 149 N. W. 20.
    
    
      
       April, 1914, term calendar.
    
   Philip E. Brown, J.

Action against defendants Dieudonne as partners and defendant Nyquist as their alleged employee, to recover damages for personal injuries claimed to have been caused by the latter’s negligence while plaintiff was in a shop conducted under the firm name of E. Dieu-donne & Son. A verdict was returned against all defendants, and each of them appealed from an order denying their applications for judgment notwithstanding or for a new trial.

The accident occurred in the village of Janesville, in the afternoon of September 5,1912. It is undisputed that in 1885 defendant Emil Dieudonne, to whom we will hereafter refer by his Christian name, opened a farm implement business on his own account and under his name, in the village mentioned, and so continued to operate it until 1900, in which year his son Eugene became of age and was associated with him therein, the firm thereafter being so conducted for the period of five years, under the name of E. Dieudonne & Son. Defendants claim that in 1905 this partnership was dissolved by Emil’s withdrawal, the son continuing the business alone, and that since then the father has had no interest in the same, except as a creditor, and has taken no part in its management. It was conducted at all times in a building, owned by Emil but rented to Eugene after the dissolution, which fronted on the graded and paved main street of the village, the main entrance opening upon the sidewalk. The building was 42 feet wide and 90 feet deep, and situated in the center of the block, on a lot 140 feet deep, extending back to a 20-foot unpaved, ungraded, littered alley bisecting the block. Up to 1910 it had been used .entirely for the sale and exhibition of farm machinery, having an office in front and a board floor, on a level with the sidewalk, running back its entire length. After the alleged dissolution and prior to 1910 the business of repairing automobiles was conducted in the rear part, and in the latter year all the board floor except about 37 feet in front was taken out, the level lowered two and one-half feet, and a cement floor substituted. The rise between the two floors was not boarded up and there were no permanent steps connecting them; a movable step, consisting of boxes being used for this purpose and being shoved under the board floor when space was needed. The area of the cement floor was divided into two compartments, one used as a garage and the other as a repair shop, with an entrance through a door opening to the rear. Nothing was kept for sale in these compartments, nor was either fitted up for the reception of customers, and the workmen there employed were engaged solely in repairing automobiles. Adjoining the office árticles were kept for exhibition, including repairs for machinery.

On tbe day of tbe accident plaintiff, a farmer residing near Janes-ville, entered tbe building through tbe rear door, for tbe purpose of exchanging some mower repairs be bad obtained on tbe previous day. Defendant Nyquist, an employee in tbe repair shop, was then engaged in tbe garage in repairing a defective automobile belonging to defendant Eugene, and, as plaintiff was about to enter, be backed tbe machine out through tbe door, noticing plaintiff and another man enter just after be came out. Stopping tbe automobile outside tbe entrance, but leaving tbe motor running very fast and without applying tbe brakes, on tbe supposition that tbe machine was not in gear, but not in fact knowing where tbe defect was, be proceeded with bis work. He then stepped into tbe ear and as be did so it started to move forward and, not being under control, ran into tbe garage. Plaintiff, who at this time was passing through tbe rear of tbe building in order to reach tbe office, was struck by tbe machine when near tbe temporary step and injured. He was familiar with tbe premises and their uses, and be and others bad frequently entered tbe building through tbe rear for tbe purpose of transacting business in the front.

Defendants insist that plaintiff was a mere licensee, to whom no duty was owing except to refrain from wilfully injuring him while on the premises, and hence in no event is entitled to recover against any of them. We have set out tbe location and details with reference to tbe construction and use of tbe building, because these matters were elaborately covered by tbe testimony given on tbe trial and are also relied upon to establish tbe point mentioned. But it clearly appears that tbe building was such as is ordinarily used in tbe villages of tbe state for exhibition of farm implements and automobile repairs, and, taking into consideration the business transacted in it, its location, and tbe use made by patrons of tbe rear door, we cannot say that a customer like plaintiff, when entering from tbe rear, would have no better standing than a bare licensee. The fact that tbe alley was unimproved and strewn with rubbish such as is usually found in such places is not of importance; for farmers, who of necessity are often Confronted with such conditions, would naturally be frequent customers of tbe business conducted in tbe front of tbe building, and tbe persons in charge must have known that tbe condition of tbe alley would not, and did not, prevent them from using tbe rear entrance wben more convenient than tbe front. .Plaintiff was entitled to tbe rights of one who comes upon tbe premises of another by invitation. We find no reversible error in tbe instructions in this regard.

Tbe further claims that, as a matter of law, defendant Nyquist’s negligence was not established and that plaintiff should be held to have been negligent, are not sustained. We deem tbe recital of tbe facts stated concerning tbe manner in which tbe automobile was bandied a sufficient refutation of tbe first, and tbe question of plaintiff’s negligence was so plainly for tbe jury that tbe second does not merit discussion.

Defendants also contend that, because tbe Dieudonnes are sued as partners, unless such relationship was established no recovery can be sustained against any of defendants. Tort feasors, however, are jointly and severally liable, and G. S. 1913, § 7897, provides that “when two or more are sued as joint defendants, and the plaintiff fails to prove a joint cause of action against all, judgment may be given against those as to whom tbe cause of action is proved.” See Miles v. Wann, 27 Minn. 56, 6 N. W. 56; Huot v. Wise, 27 Minn. 68, 6 N. W. 425; Fryklund v. Great Northern Ry. Co. 101 Minn. 37, 111 N. W. 727.

Tbe complaint, in addition to alleging that defendants Dieu-donne were copartners, charged that they conducted their business in tbe building wherein tbe accident occurred, and bad done so for a long time previous thereto, inviting plaintiff to come there and trade, and that plaintiff bad for a long time been a customer, entering their place of business under such invitation for the purpose of trading; and defendants admitted that, subsequently to tbe alleged dissolution of tbe partnership, the business was continued under tbe same firm name, this being permitted by Emil in order to give bis son credit, and that with bis knowledge and without protest advertisements over tbe name “E. Dieudonne & Son” were thereafter published in a newspaper of tbe village, soliciting patronage. Furthermore, it appeared that plaintiff bad, for a number of years both before and after tbe dissolution, been a customer of the business, and no proof was made that he had notice or knowledge of the dissolution. But the court, nevertheless, held and charged that plaintiff could recover only in case an actual partnership relation existed, and defendants insisted that the evidence does not warrant a finding of such, and further that, this being an action in tort, the instruction given by the court was correct. We sustain defendants’ first claim and hold the evidence insufficient to establish a partnership. This conclusion necessitates consideration of the second contention as to the correctness of the instruction. It has long been settled that a merchant, who keeps his place of business open to customers and invites and permits them to enter therein to trade, owes them the duty of exercising reasonable care to keep the premises safe for their ingress, progress and egress. Corrigan v. Elsinger, 81 Minn. 42, 83 N. W. 492. Under this rule, if the alleged partnership had been established, Emil’s liability would be clear. The rule, however, has been further developed, and in the case cited it was held that this duty was nondelegable and could not be shifted upon a contractor engaged in making repairs, whose negligence caused the accident. In Mastad v. Swedish Brethren, 83 Minn. 40, 85 N. W. 913, 53 L.R.A. 803, 85 Am. St. 446, it was held that a person having the management and control of a public place of amusement, which he invited the public to attend for pay, was bound to exercise reasonable care to protect his patrons from assaults and insults from one becoming intoxicated with liquor which he there sold him. In Thompson v. Lowell, L. & H. St. Ry. Co. 170 Mass. 577, 49 N. E. 913, 40 L.R.A. 345, 64 Am. St. 323, a street railway company was held liable for an injury to a spectator, by reason of the negligent management of a stage exhibition at a pleasure resort owned by it and on its line, though the exhibition was conducted exclusively by an independent contract- or hired by the company for that purpose, and though the latter was not interested in the performance or its management, except insofar as patrons were induced, through its advertisements, to use its line in reaching the place of amusement. See also Richmond & M. Ry. Co. v. Moore, 94 Va. 493, 27 S. E. 70, 37 L.R.A. 258. Considering the rule as applied in the cases cited, to which many others of like effect might be added, what is its underlying motive ? Does liability result because of ownership or actual occupation or management, or does it flow from the invitation extended to tbe public by one who has clothed himself with all indicia of the right to extend the same, coupled with apparent ownership or control ? Defendants rely largely npon Smith v. Bailey, L. R. 2 Q. B. (1891) 403, and certain text books approving it, which criticise and refuse to follow Stables v. Ely, 1 Carr & P. 614, wherein it appears to have been held that one who allowed his cart to go out with his name on it held himself out to the world as liable for injuries occasioned by the negligence of anyone driving it. We agree that both the Smith case and the text authorities cited are sound in principle, but think they are not decisive of the present inquiry, if at all in point. In both the Smith and the Stables cases the accident happened on the highway, without the element of invitation and the duties incident thereto. In cases like the present one the gist of liability lies in the invitation, when extended under the circumstances indicated in the question. It does not rest wholly in estoppel but upon the assumption of a definite status — of control or ownership — with reference to the property, and a specific relation —involved in the invitation — towards the person injured; neither of which the defendants here attempt to deny. Nor, as we have seen, does it depend upon the doctrine of respondeat superior. See also Bol-lock, Torts (8th ed.) 74, 75. Where, as in this case, there is a holding out of a partnership relation concerning the control of a place where business is transacted, and an invitation to patronize extended under such circumstances of publicity as to warrant the inference that a person, subsequently injured therein through failure to exercise due care for his safety, must have had the right to believe that those extending the invitation were in control of the premises, liability results without regard to the existence of the partnership relation. Any other rule would enable those who have allowed invitations to he extended to the public in their names to escape liability for nonperformance of the duties they have thereby assumed by setting up ownership or control of the place in some irresponsible person.

The finding of the jury as to negligence and damages, when considered in connection with the undisputed facts, establishes liability on the part of defendant Emil, irrespective of the actual existence of tbe alleged copartnership, and there is nothing in the assignments of error showing sufficient prejudice to the rights of defendants to render this conclusion unjust. Hence the order is affirmed.

Bunn, J.

I dissent from the proposition that Emil Dieudonne is liable in this case. It was necessary, in my opinion, to establish a partnership in fact, and this the evidence failed to do. There- was a “holding out,” but my view is that, this does not create a liability, under the facts here, either on the doctrine of estoppel or that of invitation. The fact that the firm name remained “E. Dieudonne & Son” had nothing to do with the happening of the accident to plaintiff. It does not appear that in going upon the premises, which were not inherently dangerous, plaintiff was relying upon the exercise of care on the part of the elder Dieudonne. The doctrine of invitation, upon which the majority opinion predicates liability, has no application, in my opinion, where the party sought to be held is not in fact in possession or control of the premises.

IIallam, J.

I do not concur in the rule of liability adopted in paragraph four of the foregoing opinion. It must be remembered that Emil Dieu-donne is sought to be held liable, not for any act of his own, but for the act of one employed by his son, Eugene Dieudonne. It appears to me there are only two possible theories on which Emil Dieudonne can be held liable for the act of his employee. One is that there was an actual partnership between himself and his son, the other that there was a partnership by “holding out.” The opinion holds that the evidence is not sufficient to establish actual partnership. This leaves only the question of partnership by “holding out.” Some courts have expressed doubts as to liability by holding out as a partner in any case of personal tort. It seems to me that such liability may exist, but that, like liability to contract creditors, it must rest on es-toppel; that is, where a person is not a partner in fact, but merely permits himself to be held out as such, those, and only those, who have dealt with tbe firm in reliance upon bis conduct can take advantage of it.

It' should not be said that, because one not a partner is willing to assume liability to those who give credit in reliance on his name, he must thereby assume responsibility to the whole world to keep the partnership premises in safe condition. The doctrine of liability to the" whole world by holding out was in a few early cases applied to liability on contract, but it has long since been repudiated. Bates, Partnership, §§ 92, 93, and eases cited. It is equally inapplicable to liability in tort. Bindley, Partnership (7th ed.) p. 79; Sherrod v. Langdon, 21 Iowa, 518; Maxwell v. Gibbs, 32 Iowa, 32.

If plaintiff had known Emil Dieudonne was not a partner, surely it could not be said Emil Dieudonne would be liable to him; nor could he be held liable to one who had no knowledge at all of his relations with the firm. Neither should he be held liable to one who knew of his conduct, unless such person has dealt with the firm on the faith of his conduct.

Such cases as bear on this subject have generally held that liability of one as a partner by holding out is more restricted in case of tort than contract. Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L.R.A. 675. The decision in this case establishes much the broader rule of liability in tort cases.

This case differs from the line of cases cited to which belong Corrigan v. Elsinger, 81 Minn. 42, 83 N. W. 492; Mastad v. Swedish Brethren, 83 Minn. 40, 85 N. W. 913, 53 L.R.A. 803, 85 Am. St. 446; Thompson v. Lowell, L. & H. St. Ry. Co. 170 Mass. 577, 49 N. E. 913, 40 L.R.A. 345, 64 Am. St. 323; Richmond & M. Ry. Co. v. Moore, 94 Va. 493, 27 S. E. 70, 37 L.R.A. 258. In all those cases was involved an invitation by the party in possession and control of premises, which involved the correlative obligation to keep the premises in safe condition, and to use due care to protect the invitee from injury at the hands of others. If defendant Emil Dieudonne had been in fact in possession and control of these premises, these cases would apply. But he was not. The case rests upon the claim that he held himself out as being in such possession and control in common with his son, and this claim in turn rests on evidence that he held bimself out as a partner. Tbe whole case accordingly falls back on an alleged partnership by holding out, which it seems to me is based only on estoppel.

The majority opinion uses the language that the liability of defendant Emil Dieudonne “does not rest wholly in estoppel,” but I do not understand this to mean that proof of an estoppel is considered essential to defendant Emil Dieudonne’s liability. The question whether an estoppel was made out, the opinion does not at all discuss or decide. I dissent from the principle established by the opinion, that one may predicate liability in tort on an “invitation” upon which he has not acted or relied.  