Hancock v. Stradley, 42834
| Decision Date | 09 March 1971 |
| Docket Number | No. 42834,42834 |
| Citation | 482 P.2d 580 |
| Parties | John M. HANCOCK, Plaintiff in Error, v. C. W. STRADLEY, d/b/a Stradley Supply Company, and Bobby Bennett, c/b/a B & B Supply Company, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In an action against three alleged joint tort feasors as defendants, and where the verdict was against only one of the three defendants, and where no exception to the verdict was made, the verdict will stand where the instructions show a clear intention of the jury to render a verdict against only the one defendant.
2. Agreements or articles of a joint adventure need not be in writing.
Appeal from the District Court of Creek County; John Maley, Judge.
Action by Hancock against Stradley, Bennett and Sparks as joint adventurers for personal injuries suffered while in employ of Sparks. Jury returned verdict only against Sparks, without mentioning Stradley and Bennett. Hancock appeals from order denying him a new trial against Stradley and Bennett. Affirmed.
Herbert L. Arthurs, Deceased, Robert W. Blackstock, Harry M. McMillan, Arthurs, Blackstock & McMillan, Bristow, for plaintiff in error.
George S. Downey, Tulsa, for defendant in error C. W. Stradley.
W. A. McWilliams, Oklahoma City, for defendant in error Bobby Bennett.
Jack M. Hancock (plaintiff below) brought this action against C. W. Stradley, Bobby Bennett and Lonnie Sparks, as joint adventurers, to recover damages for personal injuries allegedly sustained because of negligent acts of Sparks while acting as a joint adventurer and as agent for Stradley and Bennett. The cause was tried to a jury and the jury returned a verdict for plaintiff only against the defendant Sparks. The defendants Stradley and Bennett were not mentioned in the verdict and there was no verdict either for or against them.
Plaintiff contends that the jury left the issues between plaintiff and the defendants Stradley and Bennett undetermined and that he is entitled to a new trial to properly determine these issues. Plaintiff relies upon Britton v. Groom, Okl., 373 P.2d 1012, 1014, for the proposition that where no mention is made in the verdict or judgment as to some defendants the case as to such defendants remains undecided and undisposed of.
The application of this rule depends on the circumstances.
Plaintiff's petition was based on the legal proposition that the three defendants were joint adventurers in the tearing down and salvaging of oil storage tanks. The answers of Stradley and Bennett denied they were engaged in any joint adventure with Sparks. There is no dispute that Stradley originally owned the land and the tanks thereon and that he conveyed one-half interest in at least some of the tanks to Bennett. Stradley said he conveyed his remaining one-half interest to Sparks for $32,500.00, with a down payment of $2500.00, and the balance to be paid to Stradley and a bank (which had a mortgage), with Sparks assuming full responsibility for dismantling his purchase. Stradley produced a memorandum of this sale signed only by Sparks. Plaintiff was employed by Sparks to help dismantle the tanks, and while so working was injured.
The action was filed when it developed that there was no Workmen's Compensation Insurance coverage. 85 O.S.1961, § 12.
The trial court, without an objection, instructed the jury in effect that the liability of Stradley and Bennett was predicated only upon the defendants being joint adventurers. The court instructed the jury in instruction No. 3, as to the elements necessary to constitute a joint adventure relationship; in instruction No. 4, that each member of a co-adventure acts individually and as agent for the other members; and in instruction No. 8, in effect, that if the jury found the defendants were joint adventurers and plaintiff was employed by one of them and was injured by their negligence, then the verdict should be for plaintiff against these defendants.
The court further informed the jury in instruction No. 9, as follows:
'You are instructed if you do not find a joint adventure between these defendants, but do find one of the defendants hired the plaintiff and that plaintiff was injured because of the negligence of that defendant and that this negligence was the proximate cause of the plaintiff's injuries, then you must find for the plaintiff and against that particular defendant.'
The jury returned a unanimous verdict 'for the Plaintiff as against Sparks, and fix the amount of his recovery at $60,000.' Two additional forms of verdict relative to Stradley and Bennett were not used by the jury and were disposed of by the court. They are not a part of the record. Plaintiff made no objection to the form of the verdict.
Plaintiff filed a motion for new trial as to the defendants Stradley and Bennett. The motion was denied and plaintiff filed an appeal in simplified form to this court.
Thereafter, it was discovered that no journal entry of judgment had been prepared and submitted to the trial judge, and the record was returned to the trial court for appropriate action. In connection therewith the trial judge made and filed an affidavit in the cause relating the procedure in submitting the cause to the jury and his understanding and to the effect and result thereof. He stated, among other things, that the case was submitted to the jury under instructions relative to the liability of parties as joint venturers, and 'that plaintiff having been engaged by the defendant Sparks, the other defendants would have no legal liability to plaintiff unless the jury found that they were members of a joint venture. * * *;' that under the instructions and forms of verdict presented to the jury the verdict against Sparks had the effect of exonerating the remaining defendants, 'upon the finding by the jury that no joint venture or joint venture liability existed between the defendants, Stradley...
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