"[C]ourts ordinarily require clear evidence of a community of interest in a common undertaking in which each participant has or exercises the right of equal or joint control and direction. Each of the parties must have equal voice in the manner of its performance." Bowers v. Treuthardt, 92 N.W.2d 878, 883 (Wis. 1958). Thus, there must be evidence that LAMP-US and LAMP-Canada had equal control of the ministry.
Consistent with our finding that the relationship in question was not a bona fide partnership, we likewise hold that their relationship failed to qualify as a joint venture because of the scope and period of time which such relationship encompasses.Cf. Insurance Co. of North America v. ILHR Department (1970), 45 Wis.2d 361, 173 N.W.2d 192; Estate of Starer (1963), 20 Wis.2d 268, 121 N.W.2d 872; Bowers v. Treuthardt (1958), 5 Wis.2d 271, 92 N.W.2d 878. The taxpayer was assessed additional taxes by the Department of Revenue because it believed that the farm-related income split by the taxpayers on their Wisconsin return was attributable solely to Mr. Skaar. This was because the department determined the business relationship not to be that of partnership, but of a sole proprietorship.
The defendants-appellants cite Ogle v. Avina (1966), 33 Wis.2d 125, 146 N.W.2d 422, and cases cited therein, for the rule that a driver before entering an arterial highway must not only exercise a proper lookout but must make a reasonable judgment or calculation as to the time it will take to enter and reach a proper position on the highway. Heinecke v. Hardware Mut. Casualty Co. (1953), 264 Wis. 89, 94, 58 N.W.2d 442; Plog v. Zolper (1957), 1 Wis.2d 517, 527, 85 N.W.2d 492; Bowers v. Treuthardt (1958), 5 Wis.2d 271, 275, 92 N.W.2d 878. While the plaintiff's testimony as to lookout is not completely unequivocal, there can be no doubt that the plaintiff had reached a proper place on the highway.
See also, 2 Blashfield Auto Law 3rd Ed., § 104.1, p. 266, wherein it is said that "The duty of a motorist to maintain a lookout involves not only the physical act of looking but also a reasonably prudent reaction to whatever danger has been disclosed * * *." Similar rules are stated in 60 C.J.S. Motor Vehicles § 284 c; Penoso v. D. Pender Grocery Co., 177 Va. 245, 13 S.E.2d 310, Humphries v. Gray, 305 Ky. 206, 203 S.W.2d 8, and Bowers v. Treuthardt, 5 Wis.2d 271, 92 N.W.2d 878. This court has also said that in fulfilling his duty to keep a careful lookout the operator of the vehicle is "required to look in such an observant manner as to enable him to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances."
In Plog v. Zolper (1957), 1 Wis.2d 517, 527, 85 N.W.2d 492, we again addressed ourselves to calculation and to the sufficiency of the observation as elements of lookout. In Bowers v. Treuthardt (1958), 5 Wis.2d 271, 275, 92 N.W.2d 878, we state almost categorically that "[f]ailure properly to evaluate what is seen is as much an element of negligent lookout as not to see the source of the danger at all." The controlling element in the decisions is the reason for the incorrect conclusion that it was safe for the driver to proceed on the highway.
Crye v. Mueller (1959), 7 Wis.2d 182, 189, 96 N.W.2d 520. See also Bowers v. Treuthardt (1958), 5 Wis.2d 271, 92 N.W. (2a) 878. Wilant was unable to make any efficient observation to his right from a point three to five feet south of the intersection.
In that decision, we reserved the question whether the sharing of losses as well as sharing the profits is a necessary element. In Bowers v. Treuthardt (1958), 5 Wis.2d 271, 92 N.W.2d 878, and in Lewis v. Leiterman (1958), 4 Wis.2d 592, 91 N.W.2d 89, we indicated a joint adventure included the sharing of losses as well as profits. We believe those decisions to be correct. While there is a conflict in the authorities, we adopt the rule it is not necessary to prove an express agreement relating to the sharing of losses in order to establish a joint adventure between one party supplying services and the other party furnishing money, but once that relationship has been established the sharing of losses will be implied from the sharing of profits excepting in those cases in which an express agreement exists not to share losses.
See also 48 C. J. S., Joint Adventures, p. 809, sec. 2. In Lewis v. Leiterman (1958), 4 Wis.2d 592, 91 N.W.2d 89, and Bowers v. Treuthardt (1958), 5 Wis.2d 271, 92 N.W.2d 878, we pointed out two of these elements of joint enterprise, namely, an agreement among the parties to share profits and losses and the joint right of equal control of the operation involved in the enterprise jointly undertaken. Whether the third element must include a sharing of losses as well as profits as stated in the last two cases is not hereby decided.
Knarian v. South Haven Sand Company, 361 Mich. 631, 106 N.W.2d 151. The Wisconsin court, in Bowers v. Treuthardt, 5 Wis.2d 271, 92 N.W.2d 878, said: "* * * Failure properly to evaluate what is seen is as much an element of negligent lookout as not to see the course of danger at all.
It is further contended that the trial court erred in refusing to hold as a matter of law from the evidence that the plaintiffs were not engaged in a joint enterprise. In support of this contention it is first argued that the cases of Lewis v. Leiterman, 4 Wis.2d 592, 91 N.W.2d 89, and Bowers v. Treuthardt, 5 Wis.2d 271, 92 N.W.2d 878, are controlling. Those cases involved single trips in an automobile.