Kahle v. Turner
| Decision Date | 10 October 1979 |
| Citation | 420 N.E.2d 127,66 Ohio App.2d 49 |
| Parties | , 20 O.O.3d 111 KAHLE, Appellee, v. TURNER; V. F. W. Post 6770 et al., Appellants. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A joint venture arises from a contractual association of parties with the common purpose of carrying out a single business venture for their mutual profit, for which they combine their efforts, property, money, skill and knowledge without creating a partnership or a corporation.
2. The following factors must be present, in one form or another, depending upon the agreement of the parties, in order for a joint venture to exist: contributions of effort, property, skill, knowledge and other assets to the common undertaking; a joint property interest in the subject matter of the venture and a right of mutual control or management of the enterprise; expectation of profits; a right to participate in the profits; and, usually, a limitation of the objective to a single undertaking.
3. In a joint venture, if there is no provision in the agreement between the parties concerning the sharing of losses, an agreement will be implied to share losses in the same proportion as profits are to be shared.
4. One joint venturer may surrender control of a part of the venture to another joint venturer without defeating the existence of the joint venture.
Keating, Muething & Klekamp and Louis F. Gilligan, Cincinnati, for appellee.
Edward K. Halaby, Cincinnati, for appellants.
Defendants-appellants, V.F.W. Post 6770 and Western Reserve Mutual Casualty Company, seek reversal of the judgment of the Court of Common Pleas of Clermont County holding that Western Reserve Mutual Casualty Company (hereinafter Western Reserve) is obligated, as the insurer against premises liability on the property of V.F.W. Post 6770 (hereinafter the Post), to pay $100,000 to plaintiff-appellee, Kenneth Kahle (who brought the action individually and as administrator of the estate of Sharon Kahle, deceased), for injuries to him and for the death of his wife resulting from their fall from a ferris wheel operated by defendant William Turner (hereinafter Turner) during the 1974 "New Richmond Fair" held by the Post annually on the Fourth of July.
Appellants claim that the court erred in two respects. The first claimed error is the holding that the Post and Turner were engaged in a joint venture and, thus, that the Post was liable for Turner's negligence. Appellants concede that Turner was negligent, that this negligence was the proximate cause of Kahle's injury and his wife's death, and that the amount of damages exceeded the $100,000 limit of the premises liability policy issued by Western Reserve. 1 However, they contest the existence of a joint venture for the operation of the fair, claiming that the relationship between the Post and Turner was that of a property owner and an independent contractor. The second claimed error lies in the lower court's conclusion that since the Post was liable as a member of the joint venture, the accident was covered by the premises liability policy and Western Reserve was obligated thereunder to pay the damages for which the Post was liable. Western Reserve contends that the accident did not occur on the Post' premises and that it did not arise out of any activity covered by the policy.
We do not find appellants' arguments persuasive, and we hold that the trial court did not err. We affirm.
With respect to the issue of whether the Post and Turner were engaged in a joint venture, the record discloses the following characteristics of their relationship. Beginning in 1965, Turner contracted with the Post to participate in Fourth of July Fairs, the purpose of which was to turn a profit. For Turner, the profit was the standard goal of his amusement business; on the other side, the profit was used for the operation of the Post and the maintenance of its premises. Under the contract between them which was partially written and partially oral, Turner furnished about six amusement rides, one of which was the ferris wheel, brought the equipment to the site designated by the Post and furnished the personnel to assemble, erect and operate the rides. Turner furnished about 100 posters advertising the fair, and these announced that both the Post and Turner were sponsors. Turner furnished the ride tickets, consecutively numbered for accounting purposes, and Turner paid for one half of the cost of cleaning up the site after the fair was closed, the Post paying the other half.
The Post furnished the site of the fair which included its property and building together with the city block of George Street on which their property fronted. Post personnel obtained permission from the New Richmond authorities to "close-off" the block and to use the block for the duration of the fair. While the Post obtained the services of city police during the fair without special charge, it made a contribution to the "police fund," annually, at the appropriate time. Post personnel hung and distributed the advertising posters furnished by Turner, and otherwise promoted the fair in advance. They sold tickets for the amusement rides operated by Turner, thus, handling all of the cash receipts from the amusement rides. The Post furnished, at its cost and from its premises, all the electricity as well as the transformer and wires needed by Turner to operate his facilities.
In addition to the amusement rides, Turner ran certain concessions (baseball throwing, for instance) for his own account from small booths in what was called "the midway." The Post had five booths it ran for its own account (food, beverages and gaming tables) located at the front entrance of its building and elsewhere on the fair site.
The gross receipts from the amusement rides were divided as follows: 25 percent to the Post; and, 75 percent to Turner. In addition, Turner paid a flat fee of $15 for each of his concession booths. While the agreement was silent on expenses, the custom was that each party was responsible for the cost of those facilities, materials, supplies,...
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