Smith v. Grenadier

• Decision Date: 31 August 1962
• Docket Number: No. 5456,5456
• Citation: 127 S.E.2d 107,203 Va. 740
• Court: Virginia Supreme Court
• Parties: WILBUR T. SMITH, ADMINISTRATOR, ETC. v. HERMAN GRENADIER, ET AL. Record

Page 107

127 S.E.2d 107

203 Va. 740

WILBUR T. SMITH, ADMINISTRATOR, ETC. v. HERMAN GRENADIER, ET AL.

Record No. 5456.

Supreme Court of Appeals of Virginia

August 31, 1962.

Robert C. Fitzgerald (Thomas O. Lawson, on brief), for the plaintiff in error.

Norman F. Slenker (Charles H. Duff; Duff, Luther & Slenker, on brief), for defendant in error, Herman Grenadier.

A. Hugo Blankingship, Jr. (E. Waller Dudley; Boothe, Dudley, Koontz & Blankingship, on brief), for appellee, Wayne Construction Company.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Wilbur T. Smith, administrator of the estate of Donald B. Smith, deceased, instituted an action against Ray Rainwater, Herman Grenadier and Wayne Construction Co., Inc. to recover $30,000 for the wrongful death of plaintiff's decedent. All defendants filed their grounds of defense and defendant Grenadier filed an affidavit denying that defendant Rainwater was his agent, servant or employee. At the conclusion of plaintiff's evidence all defendants moved to strike plaintiff's evidence. The motion was granted as to defendants Grenadier and Wayne Construction Co., Inc. and was refused as to defendant Rainwater. The jury returned a verdict for $20,000 against Rainwater and judgment was entered thereon. Rainwater has not appealed from the judgment and it is final as to him.

We granted plaintiff a writ of error to the court's action in striking his evidence and entering summary judgment for defendants Grenadier and Wayne Construction Co., Inc. Plaintiff's assignments of error challenge the correctness of this action of the court.

The Fairfax County School Board awarded Wayne Construction Co., Inc. hereinafter called Wayne, a contract, as general contractor, to construct a public school known as 'Mantua' on a site located in a residential area of the county where there was a baseball diamond. By written agreement, dated August 29, 1960, Rainwater agreed to perform for Wayne the excavating and grading on the project, according to plans and specifications, for $13,000. The contract provided that this sum included the cost for a 'payment bond' which Rainwater was to furnish Wayne, as required by law. Section 11-23, Code 1950, as amended. In the performance of the work Rainwater used a heavy 'Caterpillar pan' having four large wheels, which was propelled by a D-7 Caterpillar tractor, both of which were owned by Grenadier. On the rear of the tractor there was a power unit which operates the cables that raise and lower the bowl and apron of the pan. The operator controls their movement by two levers located beside the tractor seat. It is not necessary for the motor to be running in order to lower either the bowl or the apron. A slight forward movement of the levers will drop them. The undisputed evidence was that for safety reasons the operator should never leave the bowl off the ground or the apron up when the machine is not in operation. Rainwater had used this equipment on a prior job.

While Rainwater was operating the equipment at the job site around 9 a.m. on September 23, 1960, trouble developed with the master clutch on the tractor. He then moved the equipment to an undisclosed place on the premises, where he proceeded to make the repairs. About 4 p.m. he left the equipment unattended and went to a dealer to obtain replacement parts. He returned with them about 6 p.m. and during his absence plaintiff's decedent, Donald Smith, nine years of age, was crushed to death between the bowl and the apron, according to Edward Mills, a county fireman who was called to the scene. In any event it was stipulated that his death 'was caused by some motion of this machinery '. There was evidence that the bowl was off the ground or in a traveling position while the clutch was being repaired.

Wayne employed a Mr. Stringer as superintendent for the project and as such he had 'over-all supervision of the site.' The record is silent as to whether he or any other employee of Wayne was on the site during Rainwater's absence. Rainwater had on occasions seen children 'around the site.' Under Rainwater's contract 'all engineering and grades' were to be provided by Wayne. Wayne was responsible to the school board for the completion of the project in accordance with the plans and specifications.

Grenadier purchased the equipment involved for about $14,000 in June, 1960, after having entered into a verbal agreement with Rainwater. Under this agreement Grenadier was to make the down payment and take title to the equipment in his name, and Rainwater was to use it and pay the monthly deferred payments of approximately $1,100 each as they became due. Rainwater said such payments were for 'rent' of the equipment. When he was asked if he didn't lease the equipment he stated: 'In effect, that's right'. Grenadier was to retain title to the equipment after all payments had been made. The amount to be paid by Rainwater for the use of the equipment after the deferred payments had been made was not discussed. It was agreed that Grenadier would pay for any major repairs to the machinery. The repair to the clutch was considered a major repair and Grenadier paid for the necessary parts and Rainwater's time in making the repairs, both of which amounted to about $117. Rainwater used other equipment purchased by Grenadier under the same arrangements.

Rainwater was unable to secure a 'payment bond' from a bonding company as his financial condition was not satisfactory to it. Such a bond guarantees to the general contractor that the subcontractor will make payments to all persons who perform labor and furnish materials on the job. Rainwater had a conference with officials of the general contractor concerning his inability to furnish the bond. According to Rainwater, they suggested 'that perhaps Mr. Grenadier would be willing to take the contract and get the bond in his name. ' Wayne then mailed to Grenadier on October 13, a duplicate of the contract, dated August 29, 1960, it had with Rainwater except that the amount was $13,130 instead of $13,000 contained in Rainwater's contract. The difference was for the cost of the bond, because Rainwater said he had not figured that cost in his bid. Claude E. Keener, secretary and treasurer of Wayne, stated that the contract was for the purpose of assisting Rainwater in securing a bond. At that time Rainwater had performed the greater part of the work required under the contract.

Upon receipt of the contract, Grenadier called Rainwater and they conferred about it. Rainwater told Grenaider 'that if the were, in effect, the subcontractor and he had the equipment for collateral, then they [bonding company] would issue a payment bond. ' Grenadier executed the contract with Wayne about the middle of October. Rainwater stated that he intended to submit Grenadier's contract to the bonding company in order to convince it that Grenadier was the subcontractor and had the 'payment bond' issued in Genadier's name. Rainwater completed the work and no bond was furnished Wayne by either Rainwater or Grenadier.

Plaintiff contends that under the evidence a jury question was presented as to whether the relationship of joint adventurers existed between Grenadier and Rainwater; whether the relationship of master and servant existed between them, and whether Wayne was negligent in not correcting the unsafe condition on the project site.

The court having struck plaintiff's evidence, we must view it and all reasonable inferences therefrom in the light most favorable to him. Pike v. Eubank, 197 Va. 692, 698, 90 S.E.2d 821; Mason and Dixon, inc. v. Casualty Co., 199 Va. 221, 222, 98 S.E.2d 702.

In 10 M.J., Joint Adventures, § 2, p. 695, it is stated:

'* * * A joint adventure exists when two or more persons combine in a joint business enterprise for their mutual benefit, with an express or implied understanding or agreement that they are to share in the profits or losses of the enterprise, and that each is to have a voice in its control and management. Another similarity between a partnership and a joint adventure is the fact that the parties must combine their property, money, efforts, skill, or knowledge, in some common undertaking of a special or particular nature, but the contributions of the respective parties need not be equal or of the same character.

'The distinction between a joint adventure and a joint enterprise is that the first is for profit and the second is not necessarily so.'

In Jackson Company v. City of Norfolk, 197 Va. 62, 67, 87 S.E.2d 781, we described a joint adventure as 'a special combination of two or more persons, where in some specific undertaking of a business nature a profit or other gain or benefit is jointly sought without any actual partnership or corporate designation. ' Horne v. Holley, 167 Va. 234, 239, 188 S.E. 169, 171; Jones v. Galleher & Co., 187 Va. 602, 609, 47 S.E.2d 333. See 36 Va. L. Rev., p. 425 for a discussion of this subject.

Joint adventures are not established by operation of law, but are created by contracts, express or implied. Little formality is required. The conduct of the parties, as well as other facts and circumstances of a particular case, will often justify the inference that such a contract existed. 36 Va. L. Rev. supra, at pp. 432 and 434. The absence of an express agreement as to profits and losses is 'no proof that there is no joint adventure.' 10 M.J., Joint Adventures, § 3, p. 695.

Whether or not a given set of circumstances constitutes a joint adventure is generally a question for the jury under proper instructions. 10 M.J., Joint Adventures, § 3, p. 696. Where such a relationship exists, 'each member is responsible for the negligent acts of another member which are within the scope and object of the joint undertaking.' 30 Am. Jur., Joint Adventures, § 56, p. 982. 'As in a partnership, each member of a joint adventure has the dual status of principal for himself and agent for his associates, within...