(dissenting).
*289It is my view that on the record presented the trial court was fully justified, as a matter of law, in directing the jury to return a verdict for both defendants. I perceive no issue of fact that could properly have been submitted to the jury.
As its primary basis for reversal, the majority finds actionable negligence per se on the part of appellees for failure to comply with the venting provisions of the Gas Appliance Act. I am firmly convinced that the legislature never intended said Act to have application to trailer parks in general nor to the particular incident here in question. It is only through tortured construction that the word “camp” used therein can be stretched to encompass a “trailer park.” I submit that the Act in question contemplates a permanent type structure and does not cover an ambulatory house-trailer such as is here involved.
In this connection it is interesting to observe two things: (1) The original complaint specifically charged the violation of the Gas Appliance Act but just before trial was to begin before Judge Lorna Lockwood she granted appellees’ motion to dismiss with leave to amend, and in the event an amended complaint was not filed, it was ordered that said cause be dismissed with prejudice; (2) appellant elected to amend and the amended complaint on which the case was later tried before Judge McCarthy made no mention whatsoever of said Act but based its claims for relief solely upon the theory of a failure to warn of a latent defect. This was the theory upon which the case was tried and yet the majority opinion adroitly shies away from any reference to latent defects. It thus appears to me that the appeal, contrary to all our prior decisions, is being determined upon a different theory than that presented in the court below. See Huish v. Lopez, 70 Ariz. 201, 218 P.2d 727.
There is another unsound premise inherent in the majority opinion with which I am in sharp disagreement. This has to do with the possible legal relationships created when Vinson brought his factory-built house trailer and installed it on Rima’s trailer park. The Court’s opinion finds that there was a conflict in the evidence and holds the trial court was in error in not submitting to the jury, as a question of fact, whether under the evidence the status thus created was (1) landlord and tenant, (2) principal and agent, or (3) joint adventurers. It is my view that in truth and in fact there is no contradiction in the testimony relative to this matter and that hence the lower court had the duty, as a matter of law, to determine what that relationship was. Furthermore its conclusion, apparent in the instructed verdict, that Rima was only a rental agent for Vinson in the leasing of the trailer, was manifestly correct.
The testimony of appellees Vinson and Rima as to their understanding relative to *290this transaction — which is all of the evidence on the subject — may be succinctly summarized as follows: Vinson was the owner of a factory-made Airstream house trailer, which he primarily used in the summer time for vacation purposes. On or about October 15, 1952, Vinson came to Rima (a stranger to him), who was the owner of a 31-unit trailer park, and told him that he had this trailer which he would like to rent out during the winter months at a rental figure of $25 per month. Rima advised Vinson that he had a vacant space and the rental charge for a single trailer was $18 per month, plus tax. As this presented an opportunity for the parties to make a separate profit, Rima suggested that Vinson place an ad in the paper for a prospective tenant. They orally agreed between themselves that if someone came to the trailer in response to the advertisement Rima would show the trailer; that Rima would collect the rental moneys from the tenant, turning over the $25 trailer rental to Vinson and retaining for himself the amount owed by Vinson for space rental.
Very soon thereafter, Vinson brought his trailer to the trailer park and set it in the rented space. He prepared the trailer for occupancy and hooked up the various utilities. The trailer was left unlocked so that Rima could show the. trailer. As a result of the ad, decedents, the Hortons, came to the trailer park on October 18th, and after inspecting the trailer in company with Rima, decided to rent it. They then and there paid to Rima the first month’s rental, aggregating $43.36, $25 of which was forthwith turned over to Vinson. About a week after their occupancy, the Hortons complained to Rima about some defect in the trailer doorknob; Vinson was called and he came out and fixed it. At no time did Rima ever have a key to the trailer, nor did he exercise any control over the same. Because the Hortons died on November 9th, the issue never arose as to whether Vinson would be charged by Rima for the trailer space if the trailer was not rented, nor was there any definite agreement covering same. It is upon this skimpy evidence that the majority hold the jury would be entitled to find that a partnership (i. e., joint venture) existed.
It is obvious that the only way appellants could hope to hold Rima civilly liable in this tort action is by invoking the theory of a join adventure. To my mind many of the essential elements of “joint adventure” are lacking. We held in Smith v. Phlegar, 73 Ariz. 11, 18, 236 P.2d 749, that in the first instance this presents “a question of law for the court.” There are many important tests applied in judging this relationship, but I shall only refer to three vital elements that I contend are missing from this record: First, a complete lack of showing an intent on the part of either of the parties to enter into *291such a relationship. 30 Am.Jur., Joint Adventures, section 8. Second, the lack of joint control of the trailer house: Rima at no time ever had the key or exercised any control or dominion over it. See, 30 Am.Jur., Joint Adventures, sections 10 and 11. Thirdly, a fatal defect is the absence of a showing as to an agreement for the joint sharing of profits and losses. It is universally agreed that the expectation of making a profit is an indispensable element of a joint adventure. Furthermore, it must be a business- venture for joint profit. 30 Am.Jur., Joint Adventures, section 2. I quote from Commercial Lumber Co. v. Nelson, 181 Okl. 122, 72 P.2d 829, 830:
“ * * * a profit jointly sought in a single transaction by parties thereto is the chief characteristic of a joint venture. The profit accruing however must be joint and not several, otherwise every person, firm, or individual who furnished material or supplies or performed work or labor in connection with the enterprise might be termed joint adventurers therein whether they had any such intention or not. * * ”
(Emphasis supplied.)
To the same effect see Moon v. Ervin, 64 Idaho 464, 133 P.2d 933; and Fedderson v. Goode, 112 Colo. 38, 145 P.2d 981, 985. Justice Windes in writing the unanimous opinion for this court in Arizona Public Service Company v. Lamb, 84 Ariz. 314, 315, 317, 327 P.2d 998, 1000, recognized this principle:
“We have said a joint adventure is a special combination of two or more persons where in some special venture a profit is jointly sought, * * (Emphasis supplied.)
Applying this principle to the facts of the instant case, the conclusion seems inescapable that Rima and Vinson were not partners as they were each seeking a several but not any joint profits. That is to say, Vinson was to have every cent of the $25 trailer house rental and Rima had no share therein; on the other hand, Rima was to have as his own all of the $18.36 rental paid for the space occupied by Vinson’s trailer. Hence, there is nothing joint in so far as profits are concerned. If the trailer was not rented for any period of time and Rima made no charge for his space, then the parties were each suffering a separate, but not a joint loss. It therefore becomes unnecessary to speculate whether Vinson would have been required to pay Rima if his trailer had not been rented, for even if this were true, it could not possibly change the nature of the relationship.
A directed verdict for Vinson was fully justified under the legal principles enunciated in Pena v. Stewart, 78 Ariz. 272, 278 P.2d 892.
It is for these reasons that I would affirm the judgment of the lower court.