Summary
applying separate tests for a joint business venture and a joint venture in the operation of a vehicle
Summary of this case from Am. Family Mut. Ins. Co. v. An/CF Acquisition Corp.Opinion
No. 70-276 (Supreme Court No. 23626)
Decided August 18, 1970. Rehearing denied September 9, 1970. Certiorari granted November 12, 1970.
Action for personal injuries suffered by passenger in automobile owned and operated by husband of defendant. From jury verdict for plaintiff, defendant appealed.
Reversed
1. AUTOMOBILES — Joint Venture — Two Persons — Unite Common Purpose — Each — Right to Control — Lacking — Joint Enterprise Not Exist. In order for a joint venture or joint enterprise in the operation of an automobile to exist, two or more persons must unite in pursuit of a common purpose, and each person must have a right to control the operation of the automobile and if this right to control is lacking, a joint enterprise does not exist.
2. No Evidence — Wife — Had or Exercised — Control — Automobile — Owned and Driven — Husband — Insufficient Evidence — Submit to Jury. Where no evidence was presented that wife exercised or had any control over the automobile owned and being driven by her husband, there was insufficient evidence of a joint enterprise to warrant submitting the issue to the jury.
3. Existence — Marital Relation — Insufficient — Infer — Joint Enterprise — Operation of Automobile. The mere existence of a marital relation is not sufficient to infer the existence of a joint enterprise in the operation of an automobile.
4. JOINT ADVENTURE — Cannot Arise — Operation of Law — Derived — Voluntary Agreement — Express or Implied. A joint adventure cannot arise by mere operation of law, its legal force being derived from the voluntary agreement of the parties, either express or implied.
5. Three Requirements — Joint Interest — Property — Agreement — Share Profits and Losses — Actions — Showing Cooperation — None Alone — Sufficient. There are three requirements for the existence of a joint venture to be determined: (1) there must be joint interest in the property by the parties sought to be held as partners; (2) there must be agreements, express or implied, to share in the profits and losses of the venture; and (3) there must be actions and conduct showing cooperation in the project; and none of these elements alone is sufficient.
6. Passenger Injured — Automobile — Driven — Defendant's Husband — Returning — Band Date — Plaintiff Band Member — No Evidence — Defendant and Husband — Share Profits — Own Assets — Band — Evidence Insufficient — Support Liability. Where plaintiff was injured while a passenger in car driven by defendant's husband and while returning from band date where plaintiff had been band member, and where no testimony or evidence was offered to show that defendant and her husband shared in the profits and losses of the dance band, or that they jointly owned the assets, if any, of the band, there was insufficient evidence of a joint business venture to support liability on the part of defendant.
Error to the District Court of Lake County, Honorable William H. Luby, Judge.
Joseph P. Constantine, for plaintiff in error.
Cosgriff Dunn, John W. Dunn, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This was an action for personal injuries arising out of an automobile accident. The defendant below, Mrs. Bainbrich, brings this appeal from a jury verdict in favor of the plaintiff below, Clyde Wells.
On the night of the accident, Wells and Mr. and Mrs. Bainbrich were playing as a band at a bar in Leadville, Colorado. Mr. and Mrs. Bainbrich regularly played together in the band; Wells had been hired that day as a substitute player. After the bar closed, Wells and the Bainbrichs were returning to Denver in an automobile owned and being operated by Mr. Bainbrich. The automobile hit an icy spot, skidded across the highway, and struck a guard rail.
The liability of Mrs. Bainbrich was predicated on the theory that she and her husband were engaged in a joint enterprise at the time of the accident.
It is our opinion that there was insufficient evidence of a joint enterprise to warrant submitting the issue to the jury.
In order for a joint venture or joint enterprise in the operation of an automobile to exist, two or more persons must unite in pursuit of a common purpose, and each person must have a right to control the operation of the automobile in question. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185; Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250. Where the right to control is lacking, a joint enterprise does not exist. Seal v. Lemmel, 140 Colo. 387, 344 P.2d 694; Brakhahn v. Hildebrand, 134 Colo. 197, 301 P.2d 347.
[2,3] No evidence was presented in the trial of the matter indicating that Mrs. Bainbrich exercised or had any authority to exercise any control over the automobile owned and being driven by her husband. The mere existence of a marital relation is not sufficient to infer the existence of a joint enterprise in the operation of an automobile.
"In the absence of a right of both to control, direct, and govern the operation of the vehicle, a husband and wife riding together while engaged in carrying out a common purpose are not in a joint enterprise insofar as the operation of the vehicle is concerned." 8 Am. Jur. 2d Automobiles and Highway Traffic § 680.
[4,5] We are also of the opinion that there was not sufficient evidence of a joint business venture to support liability on the part of Mrs. Bainbrich. A joint business venture has been defined as follows:
"A joint adventure cannot arise by mere operation of law, its legal force being derived from the voluntary agreement of the parties either express or implied. 48 C.J.S. Joint Adventures, § 3, p. 816, et seq.
"The test in determining whether a joint adventure relationship exists is very well set forth in the case of White v. A. C. Houston Lumber Co., 179 Okla. 89, 64 P.2d 908. Therein the court said there are three requirements for a joint venture:
"`. . . (1) There must be joint interest in the property by the parties sought to be held as partners; (2) there must be agreements, express or implied, to share in the profits and losses of the venture; and (3) there must be actions and conduct showing co-operation in the project. None of these elements alone is sufficient.'" Realty Development Co. v. Feit, 154 Colo. 44, 387 P.2d 898; accord, Swann v. Ashton, 330 F.2d 995.
Plaintiff's evidence offered on this point, disputed by defendant, was Wells' testimony that both Mr. and Mrs. Bainbrich told him what to do in connection with playing in the band; that Mrs. Bainbrich had paid him on a former occasion; that he "was under the impression" that both parties had hired him; and that both Mr. and Mrs. Bainbrich taught at the Bainbrich's dancing school. No testimony or evidence was offered to show that Mr. and Mrs. Bainbrich shared in the profits and losses of the dance band, or that they jointly owned the assets, if any, of the band.
The judgment is reversed and remanded with directions that the plaintiff's action be dismissed.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.