Schleicker v. Krier

• Citation: 218 Wis. 376,261 N.W. 413
• Parties: SCHLEICKER v. KRIER.
• Decision Date: 04 June 1935
• Court: United States State Supreme Court of Wisconsin

218 Wis. 376

261 N.W. 413

SCHLEICKER

v.KRIER.

Supreme Court of Wisconsin.

June 4, 1935.

Appeal from a judgment of the County Court of Columbia County; A. F. Kellog, Judge.

Reversed.

Action begun on the 10th day of October, 1932, by plaintiff William Schleicker against the defendants John Krier, William and Mrs. Lapp, to recover damages resulting from an automobile collision. From a judgment entered against all the defendants, John Krier appeals.

Plaintiff alleges that the automobile was driven by Lapp as the agent of Krier for the benefit of, and in the prosecution of, Krier's business. The facts are that Krier is the owner of a 120-acre farm equipped with farm machinery, live stock, farm buildings, and two dwellings. Mr. and Mrs. William Lapp are respectively son-in-law and daughter of Krier. For some time William Lapp worked for Krier, but commencing October 1, 1930, Krier and William Lapp entered into an arrangement whereby Lapp was to work the farm on shares paying a rental of $200 per year for use of machinery and live stock. Krier was “to help as far as he could” with farm work. He was to retain two acres of tobacco for his own use, and was to care for it and receive all benefits from it. The live stock was to be fed on the produce of the land. If necessary to purchase feed, it was to be paid for by Lapp, but Krier did advance money for that purpose. After the death of his wife in June, 1931, Krier boarded with the Lapps, who were residing in one of the dwellings on the farm. On the day of the accident, September 1, 1931, there were several helpers on the farm harvesting tobacco. They boarded with Lapp. On that day, Mr. and Mrs. Lapp took, with his consent, the car belonging to Krier and drove to Columbus, Wis., to purchase groceries.

In their special verdict, the jury found that the defendants Mr. and Mrs. Lapp were both negligent; that at the time of the collision the car driven by Lapp was not being used in connection with a joint enterprise and business in which Lapp and Krier were engaged; that it was not being used in the carrying on of the individual and separate business of defendant Krier; that Krier was the owner of the automobile. Upon motion by plaintiff, the answer to question 4, concerning the use of the car in connection with a joint enterprise and business in which Lapp and Krier were engaged, was changed from “no” to “yes,” and judgment was ordered against all the defendants. Other motions were denied. From the judgment against him, Krier appeals.

L. C. Gunderson, of Madison, for appellant.

Grady, Farnsworth & Walker, of Portage, for respondent.

FAIRCHILD, Justice.

[1][2][3] A partnership or a joint adventure does not usually exist between the owner of a farm and the tenant who has undertaken to work the farm on shares. A partnership is an association of two or more persons to carry on as co-owners a business for profit. The sharing of gross returns does not of itself establish a partnership regardless of the fact that the persons sharing may have a common right or interest in some of the property from which the returns to be divided are derived. Sections 123.03, 123.04, Stats.; Langley v. Sanborn, 135 Wis. 178, 114 N. W. 787;Wagner v. Buttles, 151 Wis. 668, 139 N. W. 425, Ann. Cas. 1914B, 144.

[4][5] The appellant is the father of Mrs. Lapp, one of the defendants who are charged with causing the damage suffered by respondent. He let his farm to his son-in-law, another defendant, by an arrangement under which the son-in-law was to work the farm and divide the proceeds. The farm and stock were turned over to Lapp on terms calculated to assist him in getting started in the business of farming. The facts disclosed support that inference as drawn by the jury. Appellant and defendant Lapp were not partners. The facts excluding the suggestion of partnership also exclude the idea of a joint enterprise or adventure...