Barnett v. Globe Indem. Co.

• Decision Date: 16 January 1990
• Docket Number: No. 89-CA-0790,89-CA-0790
• Citation: 557 So.2d 300
• Parties: Edna Barnett, wife of/and Samuel BARNETT v. GLOBE INDEMNITY COMPANY, Donald Solt, Frank Lopez and Bill Watson Ford, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 300

557 So.2d 300

Edna Barnett, wife of/and Samuel BARNETT v. GLOBE INDEMNITY COMPANY, Donald Solt, Frank Lopez and Bill

Watson Ford, Inc.

No. 89-CA-0790.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 16, 1990.

Carlos E. Zeledon, New Orleans, for Edna Barnett, wife of/and Samuel Barnett.

Thomas M. Young, Turner, Young & Hebbler, New Orleans, for Bill Watson Ford, Inc.

Before KLEES, WARD and ARMSTRONG, JJ.

WARD, Judge.

In this appeal we are asked to determine the correctness of the Trial Court's dismissal by summary judgment of Mr. and Mrs. Samuel Barnetts' suit for personal injuries and property damage against Bill Watson Ford, Inc.

Finding no error in the lower court action, we affirm.

Edna Barnett, while driving a vehicle owned by herself and her husband who was a passenger was involved in a collision with a car owned by Bill Watson Ford, Inc. (Watson). Donald Solt was test driving the Watson vehicle with Frank Lopez, a Watson salesman, as a passenger at the time of the collision.

The Barnetts sued Watson, Globe Indemnity Company, Watsons' insurance carrier, as well as Lopez and Solt, alleging affirmative acts of negligence on the part of Solt in the operation of the vehicle, and Lopez for entrusting the vehicle to Solt. Moreover, the petition alleges that Solt was acting as an agent and/or employee of Watson when the accident occurred.

Watson secured its dismissal from the suit through motion for summary judgment.

The Barnetts first argue that the facts of this dispute dictate that Solt's negligence should be imputed to Watson as the owner of the car on the basis that the test drive Solt took constituted a joint venture between Solt and Watson. We do not agree.

The early case of Ault & Wiborg Co. of Canada v. Carson Carbon Co., 181 La. 681, 160 So. 298 (1935) defined joint venture as follows:

To constitute occupants of a conveyance joint adventurers, there must be not only joint interest in the objects and purposes of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.

The essential elements of a joint venture are generally the same as those of partnership, i.e. two or more parties combining their property, labor, skill, etc. in the conduct of a venture for joint profit, with each having some right of control. Marine Services, Inc. v. A-1 Industries, Inc. 355 So.2d 625 (La.App. 4 Cir.1978). To constitute a joint venture in the operation of a vehicle, there must be more than a joint interest in the object and purpose of the mission, there must also be an equal right, express or implied, on the part of each of the parties to direct or control the conduct of the other in the operation of the vehicle. Squyres v. Baldwin, 191 La. 249, 185 So. 14 (1938).

Advancing their argument against summary judgment, the Barnetts correctly note that the existence of a joint venture is a question of fact and each case must be considered sui generis. Cajun Electric Power Co-Op., Inc. v. McNamara, 452 So.2d 212 (La.App. 1 Cir.1984), writ den. 458 So.2d 123 (La.1984). In this case, the Barnetts contend the record proves a joint venture. They contend the record shows that although Lopez was not at the wheel of the car at the time of the collision, he, nonetheless, exercised control over the vehicle in that he instructed Solt in the manner the car should be driven and they argue that there existed a common business purpose and a community of interest in the object of the test drive. That interest was that...