Soulek v. City of Omaha
| Decision Date | 18 July 1941 |
| Docket Number | 31002 |
| Citation | 299 N.W. 368,140 Neb. 151 |
| Parties | JOSEPH SOULEK, APPELLEE, v. CITY OF OMAHA ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A. DAY JUDGE. Affirmed in part and in part reversed and dismissed.
Judgment AFFIRMED IN PART AND REVERSED IN PART AND action DISMISSED.
Syllabus by the Court.
1. " It is proper practice for court to refuse to submit to jury defense not supported by evidence." Sterns v. Hellerich, 130 Neb. 251, 264 N.W. 677.
2. In an action for personal injuries, unless the amount of the verdict appears to be clearly wrong or the result of passion, prejudice or mistake, it will not ordinarily be set aside on appeal as excessive or be reduced by remittitur.
3. A joint adventure is in the nature of a partnership, but may exist where persons embark on an undertaking without entering on the prosecution of a business as partners strictly but engage in a common enterprise for their mutual benefit.
4. To constitute joint adventure, there must be an agreement to enter into an undertaking in the objects of which the parties have a community of interest and common purpose in performance, and each of the parties must have equal voice in the manner of its performance and control over the agencies used therein, though one party may entrust performance to another.
5. Relationship of joint adventurers does not exist between city and Works Progress Administration in carrying out of city sponsored projects under record herein.
Appeal from District Court, Douglas County; Day, Judge.
Action by Joseph Soulek against the City of Omaha and another for personal injuries. Judgment for plaintiff, and defendants appeal.
Affirmed in part, and reversed and dismissed in part.
Harold C. Linahan, W. W. Wenstrand, Edward Sklenicka and Alfred A. Raneri, for appellants.
Gordon Diesing, contra.
Heard before SIMMONS, C. J., ROSE, CARTER, MESSMORE and YEAGER, JJ., and MEYER and ELLIS, District Judges.
This is an action for damages for personal injury. Plaintiff had judgment against each defendant in the amount of $ 4,000. Both appealed.
The petition alleges that the city of Omaha and the Works Progress Administration were engaged as joint adventurers in the construction of a fire barn for said city and in the extension and repair of the city garage; that on the morning of February 2, 1939, the defendant Dunn, a timekeeper of said administration, was negligently driving from one of said projects to the other in his employment on said works when he collided with an automobile driven west on Capitol avenue in the city of Omaha by one James H. Adams, causing the automobile of said Adams to strike and injure the plaintiff, who at that time was walking south on the west cross-walk of Thirteenth street at the intersection of Capitol avenue. Defendants allege that the plaintiff was guilty of contributory negligence and complain that the trial court did not instruct on that issue.
There is little dispute in the evidence. Dunn had written up the daily time sheets on one project and at the time of the accident was going to the other for the same purpose. Adams testified that before the collision he stopped his car at the east intersection of Capitol avenue with Thirteenth street and looked in both directions; that the Dunn car was approximately 200 feet north of the intersection; that he shifted gears and drove west on the right side of the street at 12 or 15 miles an hour; that when in the northwest corner of the intersection his car was struck by the Dunn car, causing it to strike the plaintiff who was on the cross-walk walking south. The testimony of three disinterested witnesses who viewed the collision from different nearby points is to the same effect. They also state that Dunn was driving 35 to 40 miles an hour and that without slackening his speed he smashed head-on into the right side of the Adams car. It was a clear day, the streets were dry and there were no stop or slow signs at the intersection. Dunn admitted before trial that he did not see the Adams car before the collision. We fail to find any evidence in the record that would warrant the trial court in giving an instruction on contributory negligence.
It is also urged that the court erred in failing to require a remittitur. The medical testimony is to the effect that plaintiff's back, shoulder and leg were badly bruised; that he sustained a comminuted fracture four inches below the knee of his left leg; that the large bone was broken in three places and the small bone broken across in a simple fracture; that he was in the hospital 23 days; that he wore a cast from the thigh to the toes for nine weeks, one from the knee to the toes for six weeks thereafter, and a small cast for a month or so later; that he still had a half inch atrophy of the calf and thigh muscles of said leg and only a 90 degree range of flexion in the knee and ankle; that his leg was shortened one-fourth inch; that there was a large tumor mass over the site of the fracture; that the alignment was good; that incoordination would partially disappear if plaintiff walked more, and that the reasonable charge for medical services was $ 200. Plaintiff testified that he used crutches until July of 1939, and that his left leg, knee and back caused him great pain and that he was unable to sleep. He was 58 years of age at the time of the accident and was then earning $ 21 a week loading fruit and vegetable trucks and at other jobs, and at the time of trial was not capable or able to earn more than $ 3.50 a week. We are not disposed to disturb the judgment. Unless the amount of the verdict appears to be clearly wrong or the result of passion, prejudice or mistake, it will not ordinarily be set aside on appeal as excessive or be reduced by remittitur.
Defendants also complain about certain remarks made by the court during trial with reference to one of the exhibits. We have examined the record and find that same were not prejudicial.
The city contends that the trial court erred in refusing to direct a verdict in its favor, for the reason that the evidence was insufficient to establish a joint adventure between the W. P. A. and said defendant.
"A joint adventure as a legal concept is * * * purely the creature of our American courts." 33 C. J. 841. It is in the nature of a limited partnership. Bank of Cedar Bluffs v. LeGrand, 127 Neb. 183, 254 N.W. 892. It "can exist only by the voluntary agreement of the parties to it; * * * nor can it arise by mere operation of law." 33 C. J. 847. The contract need not be express, but may be implied in whole or in part from the apparent purposes, the acts and conduct of the parties. O. K. Boiler & Welding Co. v. Minnetonka Lumber Co., 103 Okla. 226, 229 P. 1045. It is said to exist where persons embark on an undertaking without entering on the prosecution of a business as partners strictly, but engage in a common enterprise for their mutual benefit. Bosteder v. Duling, 117 Neb. 154, 219 N.W. 896; Sander v. Newman, 174 Wis. 321, 181 N.W. 822; Chisholm v. Gilmer, 81 F.2d 120; O'Neil v. Stoll, 218 Iowa 908, 255 N.W. 692; Dexter & Carpenter v. Houston, 20 F.2d 647; Goss v. Lanin, 170 Iowa 57, 152 N.W. 43. The mere pooling of property, money, assets, skill or knowledge does not create the relationship. Bank of Cedar Bluffs v. LeGrand, supra. And the absence of mutual interest in the profits or benefits is conclusive that a partnership or joint adventure does not exist. 47 C. J. 668. The principal distinction between a partnership and a joint adventure is that the latter may relate to a single transaction. Slater v. Clark & Co., 68 Ill.App. 433. 33 C. J. 847. See Griffiths v. Von Herberg, 99 Wash. 235, 169 P. 587; and of the means employed to carry out the common purpose (Troietto v. G. H. Hammond Co., 110 F.2d 135); some community of interest in the business (Wallace v. Pacific Electric Ry. Co., 105 Cal.App. 664, 288 P. 834; Holcomb v. Lorino, 124 Tex. 446, 79 S.W.2d 307); each to have a voice in its control and management (Gleichman v. Famous Players-Lasky Corporation, 241 Mich. 266, 217 N.W. 43).
The law of partnership applies to the questions arising between the parties and among the parties in relation to third parties. Each member of a joint adventure has a dual status--that of principal for himself, and as an agent for the others. Irvine v. Campbell, 121 Minn. 192, 141 N.W. 108; 47 C. J. 666. And the negligence of one will be imputed to both. Keiswetter v. Rubenstein, 235 Mich. 36, 209 N.W 154. In the absence of agreement otherwise, if one pays a joint liability of himself and...
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