Ford v. McCue

• Decision Date: 08 June 1955
• Docket Number: No. 34176,34176
• Citation: 163 Ohio St. 498,127 N.E.2d 209,56 O.O. 410
• Parties: , 56 O.O. 410 FORD, Ex'r, Appellee, v. McCUE et al., Appellants.
• Court: Ohio Supreme Court

Page 498

163 Ohio St. 498

127 N.E.2d 209, 56 O.O. 410

FORD, Ex'r, Appellee, v. McCUE et al., Appellants.

No. 34176.

Supreme Court of Ohio.

June 8, 1955.

Syllabus by the Court.

1. A joint business adventure is an association of persons with intent, by way of contract, express or implied, to engage in an carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill and knowledge, without creating a partnership, and agree that there shall be a community of interest among them as to the purpose of the undertaking, and that each coadventurer shall stand in the relation of principal, as well as agent, as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the adventure.

2. Where a person, owning and operating a bakery route for the sale and delivery by truck of bakery products, enters into a contract with another person whereby the later takes over and operates the route for an interim of six weeks during the absence of the owner and in the operation of the route purchases his own goods, makes his own collections, without division of proceeds or profits, and makes deliveries with the owner's truck, without charge or rental for its use, the owner of the route and such other person may not properly be joined as defendants, on the theory of joint adventure, in an action for the wrongful death of a third person alleged to have resulted from the negligent operation of the truck by such other person, in the absence of the owner, while delivering on the route bakery products sold by him.

3. In an action to recover for wrongful death as a result of injuries suffered in a collision of motor vehicles caused by the alleged negligent act of the defendant while operating one of such vehicles, the law regards only the direct and proximate results of the negligent act as creating liability against the defendant; and to recover in such case it must be shown, not only that the injury to the decedent was caused by the negligent act of the defendant, but that such specific injury directly caused the decedent's death.

This is a wrongful death action instituted in the Common Pleas Court of Lucas County by Charles E. Ford, as executor, on behalf of the estate of the decedent, Newton C. Blasingame, against the defendants, John E. McCue and Louie E. Rohloff.

Rohloff, a resident of Wood County, operated a bakery route in the area of Pemberville, Walbridge and Lemoyne in Wood County, Ohio. In the latter part of August 1950, Rohloff, desiring to take an extended vacation on account of ill health, made a contract with McCue whereby the latter was to take over the bakery route during the former's absence. Rohloff took McCue over the route for two days training, and, commencing about September 1, McCue took over the route for an indefinite period of five or six weeks until the return of Rohloff. For the purpose of carrying on the business until his return, Rohloff turned over his truck to McCue without charge or rental.

McCue purchased and paid for the goods which he sold on the route and paid the expenses incident to the operation of the truck. He retained the entire proceeds from the sale of baked goods by him. McCue collected the accounts owing to himself and made some collections on past sales made by Rohloff, for which he accounted to Rohloff without charge for collection. At the termination of the arrangement between McCue and Rohloff they made a settlement by which the proceeds of sales were turned over to the one who had made them.

The plaintiff brought the action against the defendants as joint adventurers. In their separate answers the defendants allege that Rohloff was a resident of Wood County; that he was not present at or near the scene of the collision between his truck operated by McCue and the automobile of plaintiff's decedent, wherein the decedent received his claimed injuries; that Rohloff did not then or at any time supervise or direct or have authority to supervise or direct McCue in connection with his operation of the truck; and that the defendants did not act in concert in respect to the operation of the truck.

Plaintiff's decedent, 67 years of age at the time of his death, was engaged in the collection of garbage in the village of Pemberville. On September 26, 1950, he was driving his 1931 Ford automobile, with a small trailer attached containing several cans of garbage, along a north and south public highway south of the village of Pemberville in the eastern part of Wood County, when McCue backed the truck out of a private driveway of a customer onto the highway on which the decedent was operating his automobile and a collision occurred between the Ford automobile and the truck.

Plaintiff's evidence tends to show that McCue backed out of the driveway, without stopping, directly into the path of decedent's automobile. On the other hand, McCue testified that the collission occurred immediately after he had backed onto the highway and stopped his truck, and that at the instant of the collision he had shifted the gears of his truck into first speed forward.

Although considerable damage was done to both vehicles, there was, at the time of the collision, no indication of physical injury sustained by the decedent, his wife or one Burns, who were passengers in the automobile at the time of the collision.

The decedent assisted McCue in tieing up the bumper on the truck, which had been loosened by the collision. The decedent rode in his automobile as it and the trailer were being towed to his residence. Upon the return home, decedent's wife first noticed that decedent had a black and blue mark over his left eye about the size of a silver quarter. There is evidence that decedent was sleepy and was quiet during the evening of the collision. After breakfast the next morning, the decedent, accompanied by his wife, drove his other automobile to Pemberville, arranged for the repair of his damaged automobile and returned home. Upon returning home decedent took some tools, went into the yard and began doing some repair work on the trailer. A half hour later decedent's wife discovered him lying dead on the ground near the trailer. The acting coroner diagnosed the cause of death as coronary thrombosis. He also observed a slight black and blue spot in the area of the temple. Proximate cause of death was made an issue in the case.

At the conclusion of plaintiff's evidence a motion for a directed verdict as to each of the defendants was granted and judgment was entered in their favor. The plaintiff appealed to the Court of Appeals on questions of law and that court reversed the judgment of the trial court and remanded the cause for a new trial, because of error in directing a verdict for the defendants.

Thereafter, the defendants filed a motion to certify the record in this court and that motion was allowed.

Reddin & Reddin, Bowling Green, Shumaker, Loop & Kendrick and Charles W. Peckinpaugh, Jr., Toledo, for appellee.

Marshall, Melhorn, Bloch & Belt and Wilbur C. Jacobs, Toledo, for appellants.

HART, Judge.

The plaintiff joined the defendants on the theory that they were joint adventurers. The defendants deny that they were joint adventurers and hence claim that they were improperly joined in the action. There was also a claim that the evidence does not show that the collision between decedent's car and Rohloff's truck was the proximate cause of the decedent's death.

In dealing with the relationship of joint adventure, difficulty arises in differentiating the legal implications of the relationship with their consequences from those of certain allied relationships such as partnership, principal and agent, master and servant, independent contractor, debtor and creditor, bailor and bailee, and joint tort-feasors. At the outset, therefore, it is pertinent to name, legally define, and differentiate, where necessary, the several essential elements of the relationship of joint adventure, within the field of the law of negligence.

Joint contract

A joint business adventure necessitates a joint contract, express or implied, between the joint adventurers to engage in a specific business enterprise, which contract does not, however, create the formal relationship of partnership. Fitzhugh v. Thode, 221 Iowa 533, 265 N.W. 893; Soulek v. City of Omaha, 140 Neb. 151, 299 N.W. 368.

Intention

Whether parties have created, as between themselves, the relationship of joint adventure or some other relationship depends upon their actual intention, and such relationship arises only when they intend to associate themselves as joint adventurers. That intention, however, is to be determined in accordance with the ordinary rules governing the interpretation and construction of contracts. Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 295 N.W. 571, 138 A.L.R. 955; Reid v. Shaffer, 6 Cir., 249 F. 553; Berkey v. Third Ave. R. Co., 244 N.Y. 84, 155 N.E. 58, 50 A.L.R. 599; Rae v. Cameron, 112 Mont. 159, 114 P.2d 1060.

Community of interest and joint control

Parties are not engaged in a joint adventure within the meaning of the law of negligence unless there is a community of interest in the purpose of the undertaking and equal authority or right to direct and govern the movements and conduct of each other in connection therewith. Rae v. Cameron, supra; Darman v. Zilch, 56 R.I. 413, 186 A. 21, 110 A.L.R. 826; Moen v. Zurich General Accident & Liability Ins. Co., 3 Wash.2d 347, 101 P.2d 323; Bond v. O'Donnell, 205 Iowa 902, 218 N.W. 898, 63 A.L.R. 901. In a joint adventure each adventurer is a principal with power of direction and control as to his coadventurers, and each of the other adventurers is his agent within the scope of the enterprise in which they are all engaged. 38 American Jurisprudence, 924, Section 237; Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564, 30 A.L.R.2d 853.

Profit and...