Stricklin v. Parsons Stockyard Co.

• Decision Date: 25 January 1964
• Docket Number: No. 43335,43335
• Parties: Henry STRICKLIN, Appellant, v. PARSONS STOCKYARD COMPANY, a corporation, Arlie Burtin, P. W. Beaman, and Frank Burt, Appellees.
• Court: Kansas Supreme Court

Page 824

388 P.2d 824

192 Kan. 360

Henry STRICKLIN, Appellant, v. PARSONS STOCKYARD COMPANY, a corporation, Arlie Burtin, P W. Beaman, and Frank Burt, Appellees.

No. 43335.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

The record in an action to recover damages for personal injuries is examined, and as more fully set forth in the opinion, it is held: (1) plaintiff's second amended petition stated a cause of action against (a) defendant Burt founded upon negligence and not upon assault and battery, (b) the employer commission firm for negligently retaining an incompetent and unfit employee, (c) the stockyard company on the theory of joint adventure with the commission firm, and (2) the district court erred in sustaining the defendants' demurrers to the second amended petition.

Payne H. Ratner, Louis Mattox, Payne H. Ratner, Jr., Cliff W. Ratner, Edmund R. Learned, R.R. Barnes and Tyler C. Lockett, Wichita, and Fayette Rowe, Columbus, were on the briefs for appellant.

Jack L. Goodrich, Parsons, was on the briefs for appellee Frank Burt. Kirke C. Veeder, Independence, was on the briefs for appellees Burtin and Beaman. Glenn Jones, Parsons, was on the briefs for appellee Parsons Stockyard Co.

FATZER, Justice.

The plaintiff brought this action against three defendants to recover damages for personal injuries, charging each with concurrent negligent acts which proximately caused his injuries and damages. The district court sustained each of the defendant's demurrers to plaintiff's second amended petition, and the plaintiff perfected this appeal.

The parties will be referred to as plaintiff and defendants in order of their appearance in the district court, unless otherwise indicated.

As a result of various motions to strike and to make more definite and certain, the plaintiff's second amended petition is lengthy, containing 61 separate paragraphs which comprise 20 printed pages in the abstract. The recital in detail of the facts surrounding plaintiff's injuries, including a great deal of evidence demanded by defendants, is highly summarized.

The plaintiff alleged that the defendant, Parsons Stockyard Company, and defendants Arlie Burtin and P. W. Beaman, doing business as Burtin-Beaman Commission Company, were engaged in a joint enterprise in the purchase and sale of livestock; that the defendant Frank Burt was in the employment of the commission company; that Burt was given to playing pranks involving physical force upon customers who were doing business in the stockyard area; that defendants Burtin and Beaman knew or had knowledge for over one year that Burt played pranks of a dangerous nature which might result in physical injury and pain to persons lawfully upon the premises, and the nature of such 'horseplay' resorted to on at least eight separate occasions, other than the one involving the plaintiff in this action, which pleaded in detail in the amended petition.

Following the foregoing recital, plaintiff alleged that on November 19, 1957, he took a truckload of calves to the stockyard company to be sold through Burtin-Beaman Commission Company; that the calves were unloaded from his truck by employees of the stockyard company and placed in pens for sale by the commission firm; that during the course of the sale of his calves from the pens, plaintiff climbed upon a '2 by 6' wooden board affixed to the top of the cattle pen and seated himself thereon; that it was customary for cattle sellers to use that board as a seat so as to be present when their cattle were sold and thereby permit free movement of the livestock in the pen and down the alleys of the stockyard. That while plaintiff was seated in the foregoing position, the defendant Burt, in an act of 'horseplay,' grasped plaintiff's feet and lifted them into the air, causing him to lose his balance and fall from the top of the pen to the concrete floor, a distance of six feet; that defendant Burtin was in the pen when Burt grasped the plaintiff's feet and lifted them into the air and although knowing of Burt's propensities for playing practical jokes upon customers involving physical force, he paid no attention to burt and made no protest to him to leave the plaintiff alone; that as a result of the fall, plaintiff suffered severe injuries which were itemized in detail.

Plaintiff first contends he alleged a cause of action against the defendant Parsons Stockyard Company on the theory of a joint enterprise with the defendants Burtin and Beaman. It was alleged that those defendants operated a joint enterprise for several years prior to November 19, 1957, and that the defendant stockyard company owned the stockyard which consisted of docks to load and unload livestock, pens covered by a roof, alleys, runways, and scales; that Burtin and Beaman occupied pens and alleyways and used the acales of the stockyard company and charged a commission for each animal sold; that when livestock was brought to the stockyard, it was unloaded at docks at the south side of the stockyard by employees of the stockyard company where it was marked for identification, and a record was made of the name of the seller, the number and type of stock and which commission firm would sell the stock, and a copy of the record was delivered to the seller and commission firm; that when livestock was to be sold through Burtin and Beaman, the same was placed in their pens; that Burtin and Beaman received bids from buyers of stock and when the stock was sold it was driven down the alleyway north to the scales maintained and operated by the stockyard company where the stock was weighed and driven into pens in the north part of the stockyard; that after the stock was weighed it belonged to the purchasers; that the employees of the stockyard company who weighed the stock prepared weight tickets and gave the same to Burtin and Beaman who, from those records, gave the seller weight tickets together with the records of the livestock company; that the seller took those tickets and records to the office of the stockyard company, located in a two-story building where Burtin and Beaman had their office, and the seller was paid by Burtin and Beaman upon presentation of his weight tickets. The purchaser was also given a carbon copy of the weight tickets. It was alleged the seller of the stock did not receive the full amount of the sale price but that Burtin and Beaman deducted therefrom yardage fees and a fire insurance premium which they paid to the stockyard company, and a commission fee which they paid to themselves. Plaintiff alleged he did not know what percent of the sale price of the livestock was charged for yardage, fire insurance, and commission, but those matters were peculiarly within the knowledge of the defendants, and further, that there was an agreement between the stockyard company and the commission firm with respect to such joint enterprise but that such facts were peculiarly within the knowledge of those defendants and he was unable to plead the agreement in any greater detail.

At the outset it should be observed that as against the defendants' demurrers, a liberal construction should be given the plaintiff's amended petition. It alleged the Parsons Stockyard Company and Burtin and Beaman were engaged in a 'joint enterprise,' and in this court all of the parties cite and discuss authorities relating to 'joint adventure.' In applying the law of negligence, there is no distinction to be drawn between joint adventure and joint enterprise. The rule is stated in 30 Am.Jur., Joint Adventures, § 56, p. 982, to the effect that although there is a distinction between the term joint enterprise as used in the law of negligence, and the term joint adventure as defined in that article, 'it is clear that the parties to a joint adventure may be deemed participants in a joint enterprise for the purposes of the application of the tort rule of imputed negligence.' See, also, 48 C.J.S. Joint Adventures § 14e, p. 870. Under the doctrine of joint enterprise or joint adventure the negligence of one participant in such enterprise or adventure may be imputed to another participant so as to render the latter liable for an injury sustained by a third person as the result of the negligence. The law considers that each is the agent of the other, and the acts of one within the scope of the enterprise or adventure may be charged against the other. (Howard v. Zimmerman, 120 Kan. 77, 79, 242 P. 131; Whan v. Smith, 130 Kan. 9, 11, 285 P. 589; Schmid v. Eslick, 181 Kan. 997, 1002, 317 P.2d 459, and cases cited.)

It is unnecessary to define precisely the term 'joint adventure,' but suffice it to say it is an association of two or more persons to carry out a single business enterprise for profit. (Whan v. Smith, supra; Curtis v. Hanna, 143 Kan. 186, 53 P.2d 795.) A joint adventure can exist only by the agreement of the parties. (Whan v. Smith, supra.) The agreement may be found in the mutual acts and conduct of the parties. (First National Bank of Van Buren, Ark. v. Hoover, 114 Kan. 394, 218 P. 1003; Howard v. Zimmerman, supra; Curtis v. Hanna, supra; Grannell v. Wakefield, 169 Kan. 183, 186, 217 P.2d 1059.) While courts do not treat joint adventure in all respects as identical with a partnership, it is so similar in its nature and in the contractual relations created thereby that the rights and liabilities as between the adventurers are governed practically by the same rules that govern partnerships. (Whan v. Smith, supra; Curtis v. Hanna, supra; Flitch v. Boyle, 147 Kan. 600, 602, 78 P.2d 9.) The usual test of a partnership as between the parties to a joint adventure is their intent to become partners. Joint ownership of property is not essential to create the relationship; it is only a circumstance which should be considered with other circumstances. Grantham v. Conner, 97 Kan. 150, 154 P. 246; Grannell v. Wakefield, supra.)

Where a petition discloses a series of correlated facts...