Roethke v. Sanger

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because there was sufficient evidence under the law of Kentucky to impose vicarious liability. The learned legal essay provided in the majority opinion has only one flaw. It is in error. I respectfully differ with the analysis of the partnership question. The opinion goes far beyond the issue presented and is largely concerned with issues about the Uniform Partnership Act which were not briefed or orally argued. A reviewing court should not redefine the issues nor substitute its view for that of the trial judge or jury unless the result is clearly erroneous. Cf. Bierman v. Klapheke, Ky., 967 S.W.2d 16 (1998).

*365The father and son used the same business name, address and telephone number; the name painted on the side of each crane was the same; the bills made no differentiation between the two businesses; the father took a business depreciation for both cranes on his income tax. The father in effect ran the business and the first check for this particular job, although payable to the son, was deposited in the bank account of the father. Surely this was sufficient evidence of a partnership, ostensible agency, or joint enterprise to sustain the jury verdict.

The trial judge declined to enter a directed verdict for either party and instructed the jury that the father could only be held liable for the negligence of the son if the jury believed they were engaged in a partnership or implied partnership and the son was engaged in the business of the partnership when the accident occurred. The terms of the instructions were defined as follows: Two people are engaged in a partnership when they agree to share the profits and losses of a business carried out by them and a partnership is implied where two people voluntarily hold themselves out to the public as being in business together.

The jury found the existence of a partnership and awarded damages. The Court of Appeals reversed stating that there was insufficient evidence to impose vicarious liability on the father.

Larry Sanger did not file a cross-motion for discretionary review and thus only those issues decided by the Court of Appeals should be addressed by this Court. Gailor v. Alsabi, Ky., 990 S.W.2d 597 (1999). The Roethkes did file a cross-appeal with the Court of Appeals, arguing that the trial judge erred in denying their motion for a directed verdict on the basis of ostensible agency. The Court of Appeals rejected the Roethke argument regarding ostensible agency.

The Court of Appeals and the majority of this Court have improperly substituted its judgment for that of the jury. A reviewing court cannot substitute its version of the jury verdict for that of a duly impaneled jury unless the failure to grant a directed verdict was clearly erroneous or the verdict was flagrantly against the evidence so as to indicate it was reached as a result of passion or prejudice. Cf. Bier-man, supra. The reviewing court must respect the opinion of the trial judge who heard the evidence because the trial judge is in the best position to determine whether a jury can properly consider the evidence. Bierman. Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts as well as matters affecting the credibility of witnesses. Bierman, citing Taylor v. Kennedy, Ky.App., 700 S.W.2d 415 (1985). The task of interpreting inferences to be drawn from the evidence is uniquely and historically suited for juries. Cf. Horton v. Union Light, Heat and Power Co., Ky., 690 S.W.2d 382 (1985).

As a result of the evidence presented, the jurors upon proper instruction found Larry Sanger vicariously liable under principles of implied partnership. The Court of Appeals and the majority of this Court have substituted its own opinion as to the evidence and the legal conclusions in this case, thereby usurping the province of the jury.

A business may be conducted by two or more persons in a fashion that will constitute an implied partnership. Crider v. Providence Coal Mining Co., 242 Ky., 514, 46 S.W.2d 1072 (1932); Graf v. Woodruff, 244 Ky. 557, 51 S.W.2d 908 (1932).

The intent of the parties to form a partnership may be implied and it need not be expressed in writing or orally. The legal *366effects of their relation follow whether or not the parties foresee and intend them, and it is immaterial that the parties do not realize that they are partners. See 59A Am.Jur.2d Partnership § 152 (1987).

“In the presence of an intent to do those things which constitute a partnership, the parties will be considered partners even though they intend to avoid the liability attaching to partners, or expressly stipulate in their agreement that they are not partners.” Id. at § 153. In addition, “... an agreement which attempts to carry out a joint venture for the mutual profit of the adventurers while evading the responsibility for losses, may be enforced and construed as a partnership.” Id.

In view of the extensive argument about the status of a joint venture and the lengthy discussion by the Court of Appeals which ultimately concluded that there was insufficient evidence to support such a theory, I believe it is necessary to explain my position on the subject. Generally, a joint venture is described as a business arrangement intended to cany out a single venture for profit. 46 Am.Jur.2d Joint Ventures § 1 (1994). Here, Larry and Chris Sanger were in business together for a number of years. Although it has been observed that courts have not set out any certain definition of what constitutes a joint venture, nor have they established a very fixed or certain boundary of the concept, contenting themselves in determining whether the facts of a particular case constitute the relationship of joint venture. See Kahle v. Turner, 66 Ohio App.2d 49, 420 N.E.2d 127 (1979). See 46 Am.Jur.2d Joint Ventures § 1(1994).

It is further observed that the use of a joint venture has become more common as a means of providing the great concentration of economic resources knowledge and skill to accomplish large-scale construction projects such as public buildings, bridges, tunnels, super highways, power dams, canals, seaways and power projects. Id. at § 2. In any event, joint ventures are generally governed by the same rules as partnerships. Id. at § 3. The trend in the law has been to blur the distinction between a partnership and a joint venture. Id. As a result, I am persuaded that the liability for torts of parties to a joint venture agreement is governed by the law applicable to partnerships in this case. Id. The business relationship of a partnership can be distinguished from a joint venture because the joint venture is a specific undertaking for profit as opposed to a general ongoing business. Id. at § 14. The distinction between partnership and the joint venture is highly fact intensive. Thus, it is a proper consideration for a jury to determine the specific facts of a particular case.

An action for negligence may lie between joint venturers when the negligence results in injury to a person seeking to recover damages. Duffy v. Piazza Constr., Inc., 62 Wash.App. 19, 815 P.2d 267 (1991).

Each party to a joint venture is jointly and severally liable for the tortious acts of the other committed within the scope of the business of the venture. The individual parties are liable for injuries to third parties for injuries based on their mutual undertaking. As in the case of partnerships, the nature of a joint venture is such that any negligence on the part of one party may be imputed to the other. See 46 Am.Jur.2d Joint Ventures § 42 (1994). In this case, it has no significant value to seek refuge in a joint venture theory. The outcome should be the same.

I would note that acts are interpreted in the light of ordinary human experience. If the principal puts one into, or knowingly permits him to occupy, a position in which, according to the ordinary experience and habits of mankind, it is usual for the occu*367pant to have authority of a particular kind, anyone having occasion to deal with one in the position is justified in inferring that the person in question possesses such authority unless the contrary is then made known. Restatement of Law of Agency § 49 Comment b (1958); See also Williams v. St. Claire Medical Center, Ky. App., 657 S.W.2d 590 (1983).

In this case the instructions given by the trial court were clear and easily understood by the jury. There was sufficient evidence to indicate that Larry and Chris Sanger had entered into a common business arrangement for their mutual benefit. There was evidence regarding the close relationship between the father and son in the business.

The enumerated requirements of Huff v. Rosenberg, Ky., 496 S.W.2d 352 (1973), are in conflict with a number of other Kentucky cases that hold that a joint venture exists when persons embark upon a common enterprise for their mutual benefit. Lappas v. Barker, Ky., 375 S.W.2d 248 (1963). Rosenberg, supra, involves the vicarious liability for negligent operation of an automobile owned by the parents but operated by the son. Clearly, this is a nonbusiness operation and does not control the business situation presented here. The ongoing business relationship demonstrated by the Sangers was a common business enterprise for their mutual profit. The jury recognized that factual situation and based their verdict on it. There was no error.

LAMBERT, C.J., and STUMBO, J., join this dissent.