Opinion
April 28, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 652
Moyers & Dunlap, Colorado Springs, for plaintiff in error.
Yegge, Hall & Evans, John R. Trigg, Denver, for defendants in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The plaintiff in error, Dean E. Yowell, was plaintiff in the trial court and is referred to as plaintiff. The defendants in error, Agajanian Enterprises and J. C. Agajanian, defendants in the trial court, are referred to as Agajanian.
The plaintiff was injured in an accident which occurred on Pikes Peak Highway on June 30, 1964. At the time, the Pikes Peak Auto Hill Climb Association, referred to herein as the Association, had a permit issued by the City of Colorado Springs and the United States Forest Service authorizing it to use the highway for practice runs, time trials and races. At the time of the accident, drivers were practicing for an automobile race to be held on July 4th. The plaintiff was riding in a car which was clearing the highway of traffic and spectators when the car was struck by a racing car driven by Thomas Jamison.
To recover damages for the injuries he sustained. Plaintiff filed this action against Pikes Peak Auto Hill Climb Association, United States Automobile Club, Thomas Jamison, Julian Rawls and Agajanian. The action was dismissed as to all of the defendants except Agajanian pursuant to stipulations with the plaintiff.
The case against Agajanian was tried to a jury. At the trial plaintiff attempted to prove that the accident in which he was injured was caused by the negligence of Rawls, the president of Pikes Peak Auto Hill Climb Association, who was acting as starter for the practice runs at the time of the accident. It was the plaintiff's theory that at the time of the accident Agajanian and the Hill Climb Association were engaged in a joint venture and that Agajanian was liable for the negligence of Rawls. In support of this theory, plaintiff relied upon the contract between Agajanian and the Association. The court held that this contract did not establish a joint venture relationship which would impose liability on Agajanian for the negligence of Rawls and dismissed the case.
The plaintiff contends here that the trial court was in error in its construction of the written contract between Agajanian and the Hill Climb Association. The contract authorized Agajanian to use the Association's highway permit to produce and promote the race on July 4, 1964, and to conduct the time trials on July 2nd and 3rd. There is no reference in the contract to practice runs. Agajanian agreed to post and guarantee prize money to participants. He was to receive all receipts from the race on July 4th. Agajanian agreed to pay the Association one thousand dollars plus 7% Of the gross monies received from the sale of television or radio coverage for the use of the Association's permit.
In construing this contract, the trial judge relied upon Realty Development Company v. Albert Feit, 154 Colo. 44, 387 P.2d 898. In defining a joint venture, the court there said:
'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 s 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 Okl. 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.' (emphasis supplied.)
The trial court's conclusion that the contract did not create a joint venture relationship between Agajanian and the Association was correct.
The plaintiff on motion for new trial argued that Agajanian was responsible for the negligence of Rawls on the theory that Rawls was acting as Agajanian's agent at the time of the accident. However, there was no evidence presented at the trial that Agajanian had any control over the practice runs on June 30th, and there was no evidence that Rawls was acting, for, or on behalf of, or under the control of, Agajanian at that time.
Plaintiff failed to prove a prima facie case against defendant Agajanian and the judgment is affirmed.
COYTE and DUFFORD, JJ., concur.