The facts in this case, about which; there is very little dispute, are unusual.
In May, 1933, appellant was the Chevrolet distributor in Glens Falls, N. Y. The president of the concern was interviewed by. defendant Jordan who represented himself as a publicity agent. As a result of the conference it was agreed that Jordan should operate a Chevrolet car for 100 hours continuously on the streets and public places of Glens Falls, South Glens Falls, Hudson Falls and Fort Edward. The car and the necessary fuel were to be furnished by appellant. Jordan was to have the privilege of selling advertisements to be placed upon the car and was to receive for his personal use the entire revenue therefrom. Appellant contracted for a display sign of its own to be placed upon the car for which it paid Jordan twenty-five dollars. Jordan solicited and obtained advertisements from local business houses and he employed a sign painter who lettered and painted the advertisements on the car.
Jordan engaged defendant Caswell to operate the automobile on the trip and agreed to pay him $100 and one-half of the revenue obtained from the advertisements for his services. Caswell was never in the employ of appellant, and the latter gave him no instructions or directions as to the operation of the car.
On May 23, 1933, at two o’clock in the afternoon, preparations were made for the commencement of the trip. Apparently the event was attended with considerable publicity. The evidence discloses that a crowd collected in front of the Rialto Theatre in Glens Falls, which was the starting point. The mayor of the city was present and it was suggested to him that precautions should be taken so that the operator of the car would be unable to leave the machine during the endurance test. As a result, handcuffs were obtained from the police department of the city and the left wrist of the defendant Caswell was handcuffed to *221the steering wheel of the machine. The handcuffs did not in any way interfere with the driver’s ability to operate the car. Caswell drove the car over the streets of the communities mentioned without incident from two o’clock in the afternoon of May twenty-third until about nine o’clock in the morning of May twenty-fourth. At that time it commenced to rain. Caswell was then operating the car on a country highway. In order to protect the advertisements on the car he drove into the farm yard of respondents. He observed no one about the premises and drove the car into the barn which had a dirt floor and which was filled with straw and hay. Within a short time the rain ceased and Caswell attempted to back the car out of the barn but was unable to do so. He testified that he rocked the car by putting it into low and then into reverse and continued to do this for two or three minutes. He then said he “ smelled smoke, shortly after explosion, fire went all over hay mow, car all burned.” As a result of the fire the building, its contents, two stacks of hay and one or two detached buildings, and the car were entirely consumed. The driver freed himself from the handcuffs by the use of a bobby pin, or so he claims, and thus escaped from the burning car.
Plaintiffs instituted this action against appellant, Jordan and Caswell to recover their damages. Defendants Jordan and Caswell did not appear in the action, and after a trial the jury rendered a verdict in plaintiffs’ favor against all defendants for the amount of their damages, about which there is no dispute. Comae Sales, Inc., has appealed from that judgment.
The important question in this case, it seems to me, is the character of the agreement between appellant and Jordan. Appellant’s counsel strenuously insists that Jordan was an independent contractor and that consequently his client is immune from liability. That contention must be rejected. The very nature of the undertaking between appellant and Jordan excludes the relation of master and servant, of employer and employee, or of principal and agent. Generally speaking, the term “ independent contractor ” signifies one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and free from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses; one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. (31 C. J. 473.) An independent contractor is one who, exercising an independent *222employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the result of his work. (14 R C. L. 67.) Obviously the term “ independent contractor ” contemplates the rendition of services by one person for the benefit of another. In the instant case Jordan was not an employee of appellant. There was no provision in the agreement by which appellant was to compensate him for the rendition of any services. This is always an important element to be taken into consideration in determining whether or not one is an independent contractor.
The learned trial judge correctly charged the jury that defendant Caswell was neither an employee nor an agent of appellant. He explicitly instructed the jury, however, that the arrangement between Jordan and appellant was not a joint enterprise. In that respect it seems to me he erred. He also advised the jury that appellant knew in advance just what it was to receive for furnishing its car and the fuel to run it. It is difficult to understand how appellant could know what benefits it would derive from the advertising. But whether the returns were much or little has no bearing on the character of the agreement existing between appellant and Jordan. Clearly both expected to profit by. the venture. Both made contributions. Appellant donated its automobile and the fuel to run it. It did that for the advertising which it was to receive, for the publicity for its Chevrolet car. Jordan contributed his time and efforts for the revenues to be obtained from the advertising. Each expected to derive a profit from his contribution. Clearly the arrangement was a joint adventure, or so a jury might have found. At common law coadventurers in an enterprise were recognized in court only when the element of partnership was disclosed and proof of the essentials of a partnership. This is not the law today. Courts do not treat a joint adventure as identical with a partnership. The relationships created thereby, however, as between the adventurers are governed practically by the same rules that govern partnerships. A joint adventure generally relates to a single transaction. (15 R C. L. 500.) Speaking of a “ joint adventure ” (in 33 C. J. 841), it is said: “ A joint adventure has been aptly defined as a 1 special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.’ * * *. A joint adventure as a legal concept is of comparative recent origin. It is purely the creature of our American courts. At common law an enterprise of a limited character, such as is now called a joint adventure, was regarded in law as merely an informal kind of partnership, and the courts made no attempt *223to distinguish the one from the other. * * * In the United States the courts, about the middle of the last century, began to find it convenient to draw a distinction between them, and hence there is gradually building up a body of American law applicable to the relation of joint adventure, which may or may not apply to the relation of partners. So far the divergence between the two relations is very slight; so slight in fact that it is generally asserted that they are governed by the same rules of law.” To the same effect in Dexter & Carpenter, Inc., v. Houston (20 F. [2d] 647).
The learned trial judge also instructed the jury that in order to constitute a joint adventure there must be a sharing of profits and losses. That is a correct statement of the law as to a partnership but not as to a joint venture. Sharing of losses is not an essential. Mere sharing of profits is not sufficient. (Simpson v. Richmond Worsted Spinning Co., 128 Me. 22; 145 Atl. 250.) Sharing of profits does not constitute a joint adventure. (Darling v. Buddy, 318 Mo. 784; 1 S. W. [2d] 163.) Where the existence of the relationship is in issue and there is substantial evidence tending to prove that the parties intended to join their efforts in furtherance of the enterprise for their joint profit the question is pre-eminently one for a jury. (Van Tine v. Hilands, 131 Fed. 124; Brady v. Colhoun, 1 Penr. & W. [Pa.] 140; Hoge v. George, 27 Wyo. 423 ; 200 P. 96.) If Jordan and appellant were joint adventurers, as I believe they were, then the question of negligence is not important. The driver whom Jordan employed left the highway and entered upon the premises of plaintiffs. In so doing he committed a trespass. His trespass is the proximate cause of the destruction of the building and its contents. The coadventurers are answerable for his acts.
Much is made of the fact that the driver of the car was handcuffed to the wheel. I do not attach any importance to that fact. Certainly it was not a violation of law to operate an automobile in this fashion. A driver of an automobile is only required to have one hand on the wheel. (Vehicle and Traffic Law, § 81, subd. 14.) This operator could use both hands with perfect freedom. One of the provisions of the agreement between appellant and Jordan was that the car should be run continuously for 100 hours on the public highways of the specified municipalities. If the operator of this car had injured someone on the highway after long hours of driving 1 can readily see that appellant would be answerable in such a case. A reasonable man would be bound to anticipate that a driver might become utterly exhausted in such an undertaking and that consequently he might go to sleep or be unable to concentrate on his work. If he injured someone under such *224circumstances a jury might very well find that there was negligence on the part of appellant in permitting its car to be used in such an undertaking. That is not our case here, however. Here the driver left the public highway and violated one of the provisions of the agreement between appellant and Jordan. While the car was off the highway appellant would not be answerable under section 59 of the Vehicle arid Traffic Law. (Sylvester v. Brockway Motor Truck Cory., 232 App. Div. 364.) Appellant’s instructions were that the car should be used on the highways. A violation of these instructions would render it immune from liability. (Chaika v. Vandenberg, 252 N. Y. 101.)
It does not appear that the act of handcuffing the driver’s hand to the steering wheel had any effect on the result. If his hands were unfettered what could he have done? The barn, filled with hay and straw, was on fire, and it seems incredible that the defendant Caswell could have extinguished it. The learned trial judge held that the action was one for negligence.
I am convinced that this cause was tried and submitted to the jury on an erroneous theory and hence I think the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.
Judgment and order affirmed, with costs.