Florida Tomato Packers, Inc. v. Wilson, s. 73--217

• Decision Date: 07 May 1974
• Docket Number: 73--218 and 73--348,Nos. 73--217,s. 73--217
• Citation: 296 So.2d 536
• Parties: FLORIDA TOMATO PACKERS, INC., Appellant, v. Janie R. WILSON, as Administratrix of the Estate of Willie Floyd Wilson, and Janie R. Wilson, Individually, Appellees.
• Court: Florida District Court of Appeals

Page 536

296 So.2d 536

FLORIDA TOMATO PACKERS, INC., Appellant, v. Janie R. WILSON, as Administratrix of the Estate of Willie Floyd Wilson, and Janie R. Wilson, Individually, Appellees.

Nos. 73--217, 73--218 and 73--348.

District Court of Appeal of Florida, Third District.

May 7, 1974.

Rehearing Denied July 17, 1974.

Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellant.

Horton & Perse, Fuller, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.

Before HENDRY and HAVERFIELD, JJ., and RICHARDSON, GEORGE, Jr., Associate Judge.

RICHARDSON, GEORGE, Jr., Associate Judge.

On or about September 23, 1971, an automobile owned and operated by Willie Floyd Wilson was hit by a farm vehicle owned by George E. Lytton, and driven by Arnold Campbell. The accident occurred in a rural area of Dade County at the intersection of a main highway and a publicly dedicated sand and gravel road.

In November, 1971, Willie Floyd Wilson and Janie R. Wilson, his wife, filed their complaint for damages, naming defendants, Arnold Kendall, George E. Lytton and Southern Farm Casualty Insurance Company.

During the proceedings, the appellee, Willie Floyd Wilson, died and Janie R. Wilson, as administratrix, was substituted in his place under the Florida Survivor Statute.

Thereafter the complaint was amended to add the appellant, Florida Tomato Packers, Inc., alleging Kendall was an employee, agent and/or servant of the appellant. L & D Farms was also added as a defendant.

During the course of the trial the appellee entered into settlement agreements with all defendants except Florida Tomato Packers, Inc. Those defendants were released from any and all liability and dismissed from the cause. The trial continued against only the appellant.

This appeal is from a final judgment after jury verdict and an amended final judgment in favor of the appellee against the appellant entered by the Circuit Court, Dade County, Florida.

Arnold Campbell was employed as a farm hand by Lytton and had been so employed for approximately two or three years. Lytton is a farmer who grows tomatoes in Dade County, Florida. The appellant, Florida Tomato Packers, Inc., is a corporation engaged in the business of packing, selling, wholesaling and distributing tomatoes.

It appears that Lytton and the appellant entered into an arrangement whereby Lytton would do the farming and the Florida Tomato Packers, Inc., would furnish funds and marketing.

The funds of over $100,000.00 supplied by the appellant were placed in a checking account under the name of L & D Farms and Paul DiMare, manager for the appellant, was the only signatory on that account. Lytton was responsible for planting the tomatoes, raising them and getting them to the appellant's warehouse. The appellant paid all of Lytton's farming bills, including for land rental, equipment rental, equipment repair, gasoline and oil, seeds and fertilizer, and all labor from the L & D Farms checking account. When the tomatoes arrived at the packing house, the appellant packed, crated, shipped and sold the crop. After deducting all expenses paid for the Lytton farm operation and the cost of the packing, shipping and selling, any profits were equally divided between Lytton and the appellant. The appellant contended that the aforementioned operation was either a partnership or a joint venture between Lytton and the appellant and claims that it was really only a loan and that the appellant had absolutely no control or direction over Lytton's farm operations.

A partnership is usually defined as a voluntary contractual relationship between two or more competent persons to place their money, effects, labor and/or skill in lawful commerce or business, with the understanding that there shall be a communion of profits between them. See 24 Fla.Jur., Partnership, § 2.

A joint venture, although a less formal relationship, partakes of many of the characteristics of a partnership. A joint venture has been defined as a special combination of two or more persons, who, in some specific venture, seek a profit jointly without the existence between them of any actual partnership, corporation, or other business entity. It is an association of persons or legal entities to carry out a single business enterprise for profit. See LaMar v. Lechilder, 1939, 135 Fla. 703, 185 So. 833; and Proctor v. Hearne, 1930, 100 Fla. 1180, 131 So. 173. Corporations may be members of a joint venture. E.g., Bankers Life & Casualty Co. v. Carol City Utilities, Inc., Fla.App.1968, 216 So.2d 808, cert. dism., Fla.1968, 228 So.2d 97; see also, Anno. 60 A.L.R.2d 917.

It has been held that as between the parties the existence of a contract is essential to the creation of the relationship of joint venturers. However, it is well established that the contract need not be express or embodied in a formal written agreement specifically defining the rights and duties of the parties. The existence of such a contract--and hence a joint venture--may be implied or inferred from the conduct of the parties or from acts and circumstances which in fact make it appear that they are participants in a joint venture. The courts of Florida have not hesitated to imply the existence of a contract. See Keck v. Schumacher, Fla.App.1967, 198 So.2d 39; Greiner v. General Electric Credit Corp., Fla.App., 215 So.2d 61; Ellison v. Riddle, Fla.App.1964, 166 So.2d 840; Kislak v. Kreedian, Fla., 95 So.2d 510; Russell v. Thielen, Fla.1955, 82 So.2d 143; Campbell v. Jacksonville Kennel Club, Inc., Fla.1953, 66 So.2d 495; and Hyman v. Regenstein, 5 Cir., 222 F.2d 545. The Florida courts have held that to create a joint venture relationship, there must be concurrence of the following elements: (1) a community of interest in the performance of the common purpose; (2) joint control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share in the profits; and (5) a duty to share in any losses which may be sustained. E.g., Hewitt v. Price, Fla.App.1969, 222 So.2d 247; Greiner v. General Electric Credit Corp., supra, Fla.App., 215 So.2d 61; Kislak v. Kreedian, supra, Fla., 95 So.2d 510; and Campbell v. Jacksonville Kennel Club, Inc., supra, Fla.1953, 66 So.2d 495.

In Florida a duty to share in losses actually and impliedly exists as a matter of law in a situation where one party supplies the labor, experience and skill, and the other the necessary capital since in the event of a loss, the party supplying the knowhow would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment...