Insurance Agents, Inc. v. Zimmerman, 14768

Decision Date22 October 1985
Docket NumberNo. 14768,14768
Citation381 N.W.2d 218
PartiesINSURANCE AGENTS, INC., Plaintiff and Appellee, v. Sam ZIMMERMAN, Defendant, and Joyce Zimmerman, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Denis R. Eckert, Elk Point, for plaintiff and appellee.

Arthur L. Rusch of Bogue, Weeks & Rusch, Vermillion, for defendant and appellant.

FOSHEIM, Chief Justice.

This is an appeal from an adjudication that Joyce Zimmerman (Joyce) was liable with Sam [Wayland R.] Zimmerman (Sam) for insurance premiums owed to Insurance Agents, Inc. (Insurance Agents). We affirm.

Following their marriage in 1964, Sam and Joyce Zimmerman moved to Ponca, Nebraska, where for ten years they operated a business under the trade name of Sam's Sales & Rentals, selling and servicing recreational vehicles. In 1979 a similar business was commenced under the name of RV Land U.S.A. near Vermillion, South Dakota. Since 1980, Joyce has been teaching school in Sioux City, Iowa.

On June 6, 1980, Insurance Agents issued a policy showing the insured to be both Sam and Joyce Zimmerman, d/b/a RV Land U.S.A. The policy period was until June 1, 1981. However, due to lack of premium payment, the insurance was terminated on February 27, 1981. A policy audit revealed the sum of $3,415.84 was due on unpaid premiums.

About the time RV Land U.S.A. was commenced, Sam and Joyce experienced marital difficulties and separated for a short time. In July, 1980, they resumed living together and Joyce helped out in the business, mostly doing bookkeeping. A bank account known as Joyce Zimmerman, d/b/a J.Z. Enterprises, was then opened at the United National Bank, Vermillion, South Dakota. Only Joyce could draw checks on this account. However, deposits from RV Land U.S.A. sales were made to this account and some RV Land U.S.A. bills were paid from it.

In October, 1981, RV Land U.S.A. was liquidated. Joyce received some proceeds from that sale which were deposited to the J.Z. Enterprises account. On or about October 14, 1981, Joyce closed the J.Z. Enterprises account by obtaining a cashier's check payable to J.Z. Enterprises in the sum of $8,315.55. Although she testified otherwise, it appears Joyce then deposited this amount to her personal account in the Security National Bank in Sioux City, Iowa. Sam and Joyce then become involved in yet another business known as RV Liquidators, to which Joyce also transferred property.

The trial court found: that the insurance policy covering RV Land, U.S.A. listed both Joyce and Sam as one of the owners of the policy as a partner and that neither Sam nor Joyce objected; that Joyce listed Insurance Agents as her insurance carrier on her personal vehicle; and that both Joyce and Sam were involved in RV Liquidators. Thus, the lower court concluded that Joyce was a partner in the business known as RV Land U.S.A., Joyce Zimmerman d/b/a J.Z. Enterprises, and RV Liquidators and was therefore liable for debts incurred, including the premiums due Insurance Agents.

A trial court's findings of fact and decision are presumed correct and we will not seek reasons to reverse. Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978); Temple v. Temple, 365 N.W.2d 561, 565 (S.D.1985). Further, the credibility of witnesses and the weight to be accorded their testimony and the weight of evidence is for the trial court, Nelson v. Palmquist, 363 N.W.2d 570, 572 (S.D.1985), and we are not at liberty to change findings where the trial court has resolved conflicts in the evidence. Gross v. Connecticut Mutual Life Insurance Co., 361 N.W.2d 259, 260 (S.D.1985). See also SDCL 15-6-52(a).

A partnership is an association of two or more persons to carry on, as co-owners a business for profit. SDCL 48-1-2. In Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661 (1959), it was noted:

Since there is no arbitrary test for determining the existence of a partnership, each case must be governed by its own peculiar facts and the existence of the relationship is a question for the trier of fact except in a case where the evidence is conclusive.

Id. at 597, 96 N.W.2d at 663. SDCL 48-2-13 provides:

When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner, he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made:

(1) When a partnership liability results, he is liable as though he were an actual member of the partnership;

(2) When no partnership liability results, he is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.

Here, Joyce's conduct with regard to the businesses of selling and servicing recreational vehicles between 1978 and 1983 must be examined as a whole to determine her status as a partner. A common thread runs through the various businesses from Sam's Sales & Rentals to RV Land U.S.A. through J.Z. Enterprises and RV Liquidators. The purpose of each business was to sell and/or trade recreational vehicles, trailers, and parts. At times Joyce did bookkeeping and greeted customers. Joyce's name was associated with one of the first transactions involving the purchase of recreational vehicles for resale. She admitted giving money to Sam over the years for "his business," and to providing financing for RV liquidators and negotiating the final sale of the business.

Moreover, it appears that the trial court felt that Joyce's credibility was questionable and that the series of businesses were, for whatever purpose, not designed to help creditors trace assets. Though the name of the business changed, the common business purpose did not.

In determining whether a partnership exists, the sharing of gross returns does not, of itself, establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived. SDCL 48-1-7. Grigsby v. Day, 9 S.D. 585, 70 N.W. 881 (1897). However, receipt by a person of a share of the profits of a business is, with some exceptions not applicable here, prima facie evidence that he is a partner in the business. SDCL 48-1-8. Finger v. Northwest Properties, Inc., 63 S.D. 176, 257 N.W. 121 (1934).

The case of Snell v. Watts, 77 S.D. 534, 95 N.W.2d 453 (1959), also involved an alleged husband and wife partnership. The plaintiff was informed that the wife would handle the payments for the insurance. The wife opened a bank account in the name under which the parties were operating their business. She was authorized to sign checks on the account and paid the business bills. In Snell, the evidence included testimony that quoted Mr. Watts as stating in his wife's presence, "She is taking care of the business angle of it and I am taking care of the sales angles of it." Id. at 537, 95 N.W.2d at 455.

In reversing a directed verdict for the defendant wife, this court acknowledged prior holdings which declared that strong evidence is required to prove a business partnership between a husband and wife because it is not uncommon for a wife to busy herself in the affairs of her husband. Id. Nevertheless, in Snell this court concluded that the plaintiff established a prima facie showing of the existence of the alleged partnership and that the trial court erred in ruling that plaintiff's evidence of the existence of the partnership to be insufficient. Id. at 538-39, 95 N.W.2d at 455-56. In this case, the record is converse. Here, the trial court found a partnership existed. Consequently, the narrow question before us is whether the trial court was clearly erroneous in that finding and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15-6-52(a). The trial court could and did find from the evidence that in some measure Joyce labored for, and received a share of, the business profits. Thus, here, as in Snell, prima facie evidence of a partnership was established. SDCL 48-1-8.

While the record does not show the elements of a partnership with the strengths found in Snell, the evidence of no partnership does not approach a conclusive nature. See Munce v. Munce, supra. Furthermore, Joyce allowed her name to be associated with the partnership within the meaning of SDCL 48-2-13. We accordingly cannot conclude the findings of the trial court are clearly erroneous.

The judgment is affirmed.

MORGAN, HENDERSON, and WUEST, JJ., concur.

HERTZ, Acting J., dissents.

HERTZ, Acting Justice (dissenting).

I dissent.

Insurance Agents (Insurance Agents) commenced this action to recover insurance premiums due on a contract of insurance commencing on June 6, 1980, and effective through February 27, 1981. The insurance was provided by Insurance Agents to a business known as RV Land U.S.A. The issue is whether Sam Zimmerman (Sam) or Joyce Zimmerman (Joyce) or both of them are responsible for the debts of RV Land U.S.A. Joyce filed an answer denying responsibility for the insurance premium; however, Sam filed no answer and defaulted in the lawsuit. Joyce appeals from that portion of the judgment which holds her jointly and severally liable to Insurance Agents for the premiums due.

In order for the proper resolution of the issue raised by this appeal, it is necessary to set out in greater detail the pertinent facts of this case.

Sam and Joyce were married in 1964 and they had three children. They were divorced on ...

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