Lafayette Bank & Trust Co. v. Price

• Decision Date: 19 October 1982
• Docket Number: No. 1-382A62,1-382A62
• Citation: 440 N.E.2d 759
• Parties: LAFAYETTE BANK & TRUST CO., Administrator of the Estate of Rodger Keener, Plaintiff-Appellant, v. Donald L. PRICE, Indianapolis Baptist Temple, and Baptist Bible Fellowship International, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 759

440 N.E.2d 759

LAFAYETTE BANK & TRUST CO., Administrator of the Estate of Rodger Keener, Plaintiff-Appellant, v. Donald L. PRICE, Indianapolis Baptist Temple, and Baptist Bible Fellowship International, Defendants-Appellees.

No. 1-382A62.

Court of Appeals of Indiana,

First District.

Oct. 19, 1982.

Ronald L. Sowers, Ronald E. James, Sowers & Benson, Fort Wayne, Mike Eidson, Colson, Hicks & Eidson, Miami, Fla., for plaintiff-appellant.

Gregory S. Carter, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for defendant-appellee, Baptist Bible Fellowship International.

RATLIFF, Presiding Judge.

STATEMENT OF CASE

Lafayette Bank & Trust Company, Administrator of the Estate of Rodger Keener, appeals from summary judgment granted in favor of the Baptist Bible Fellowship International. We affirm.

FACTS

The Fellowship is a not-for-profit corporation with headquarters in Springfield, Missouri, whose primary purpose is promoting fellowship among Baptists. The group selected Indianapolis, home of the independent Indianapolis Baptist Temple, as the site of its annual meeting in 1976. Doctor Greg Dixon, head of the Temple, invited various missions and vendors to attend the meeting and set up display booths. Booth space was provided upon a $25.00 donation to the Baptist Bible Tribune, a publication of the Fellowship. Of the twenty-four spaces rented, the Temple paid for seven and Robert Crist, d/b/a Superior Coach Sales, paid for one. Crist, whose bus business was located in Perrysville, Indiana Keener's estate brought a wrongful death action against Price and Skyway Airport, later adding the Crists, the Temple, and the Fellowship on theories of agency and joint venture. The claim against Skyway has been severed. Motions for summary judgment have been filed by the Crists, the Temple, and the Fellowship. The trial court granted summary judgment in favor of Crist and the Fellowship upon finding that "[t]here is no genuine issue of material fact in respect to the facts relevant to the issues of whether defendant Price was an agent of defendant Baptist Bible Fellowship International or whether defendant Price and defendant Baptist Bible Fellowship International were engaged in a joint enterprise." Record at 1184-87. The trial court, however, denied the Temple's motion for summary judgment. Keener's estate appeals.

had sold numerous buses to the Temple on a not-for-profit basis for use in the Temple's bus ministry. Rodger Keener, pastor of the Spanish Fort Bible Baptist Church in Alabama was looking for a bus for his church's bus ministry. Don Price, incorporated as "Don Price Evangelistic Association," was at that time a former member and a part-time consultant to the Temple and a member and part-time employee of Keener's church. He suggested that Keener seek information about a bus from Crist. Price had driven Keener and his wife and daughter to Indianapolis for the convention and then rented a Cessna 182 from Skyway Airport on September 29, 1976, to fly Crist and Keener, at the latter's request, to Highland Airport near Crist's business in Perrysville. During landing, the plane went off the end of the runway, crashed, burned, and Rodger Keener was killed.

ISSUE

Did the trial court err as a matter of law in finding that there was no genuine issue of material fact respecting the Fellowship's liability under either an agency or joint venture theory?

DISCUSSION AND DECISION

Keener's estate contends that the court erred in granting summary judgment in favor of the Fellowship because the facts in this case could support an inference that "the co-defendants, Baptist Bible Fellowship International and Indianapolis Baptist Temple clearly joined in a joint venture or principal-agent relationship to conduct an Annual Meeting and hold sales activities at the Indianapolis Baptist Temple facility." Appellant's brief at 12. We disagree.

Even if we accept, for the sake of argument, that the evidence in this case could support an inference of an agency relationship between the Temple and Price, thus constituting a genuine issue of material fact on that matter, evidence relating to the relationship between Price and the Fellowship or the Fellowship and the Temple is too tenuous to support even an inference of either agency or joint venture. We do not agree with Keener's estate that an inference of a possible agency relationship between the Temple and Price will support the further inference of an agency relationship between the Fellowship and Price. "An inference cannot arise or stand by itself. There must first be a fact established from which an inference arises. Prudential Insurance Co. v. VanWey, (1945) 223 Ind. 198, 204, 59 N.E.2d 721, 725." Palace Bar, Inc. v. Fearnot, (1978) 269 Ind. 405, 409, 381 N.E.2d 858, 861. "[A] party against whom a motion for summary judgment is made need not divulge his entire case ... [but] he must come forth with specific facts which show that there is a genuine issue for trial." Moll v. South Central Solar Systems, Inc., (1981) Ind.App., 419 N.E.2d 154, 160. Accord Warrick Hospital, Inc. v. Wallace, (1982) Ind.App., 435 N.E.2d 263, 269 (transfer pending). This court subscribes to the Restatement's definition of agency:

" 'Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' Restatement of the Law of Agency, Vol. 1, Sec. 1, p. 7. Also see: Department of Treasury v. Ice Service, Inc. (1942), 220 Ind. 64, 41 N.E.2d 201; Lincoln Nat. Bank & Trust Co. v. Parker (1941), 110 Ind.App. 1, 34 N.E.2d 190, 37 N.E.2d 5."

Minniear v. Estate of Metcalf, (1972) 153 Ind.App. 213, 215, 286 N.E.2d 700, 702, trans. denied. We find no evidence in the record of Price's acting on behalf of the Fellowship in bringing Keener and Crist together or of any control by the Fellowship over the trip to Perrysville. Keener's estate has presented no facts supporting an inference of either an actual or an implied agency existing between the Fellowship and Price. We reach the same conclusion with respect to the joint venture contention.

The concept of joint venture has deep historical roots in the world of commerce, but as a legal theory, it is a relatively recent creation of American courts. See Davis v. Webster, (1964) 136 Ind.App. 286, 198 N.E.2d 883; Jeager, Partnership or Joint Venture? 37 Notre Dame Law. 138 (1961); 2 S. Williston, A Treatise on the Law of Contracts Sec. 318 (3d ed. 1959); 46 Am.Jur.2d Joint Ventures, Sec. 1 (1969). Indiana courts have consistently preserved the commercial flavor of the joint venture concept, defining it as "an association of two or more persons to carry out a single business enterprise for profit." Beck v. Indiana Surveying Co., (1981) Ind.App., 429 N.E.2d 264, 268; Baker v. Billingsley, (1956) 126 Ind.App. 703, 708, 132 N.E.2d 273, 275-76, trans. denied; 17 I.L.E. Joint Adventures Sec. 1, 51 (1959). It is distinguished from a partnership only "in that a partnership is formed for the general business of a particular kind whereas the joint venture contemplates a single business transaction." Beck, 429 N.E.2d at 268. Indiana case law recognizes other elements necessary to and inherent in the definition of joint venture set out above. For example, it should be noted that a joint venture will arise only by contract. Oppenheimer v. Craft, (1961) 132 Ind.App. 452, 466, 175 N.E.2d 715, 722, trans. denied; Spencer v. Pettibone, (1947) 117 Ind.App. 426, 430, 70 N.E.2d 439, 441, trans. denied. The contract may be either express or implied from conduct, id., but it may not arise by operation of law. 17 I.L.E. Joint Adventures Sec. 2, 53 (1959); 46 Am.Jur.2d Joint Ventures Sec. 8, 29 (1960). Also, in the seminal Indiana case on...