Hupfeld v. Wadley

MOORE, P. J.

Appeal from a judgment in favor of plaintiff for damages resulting from personal injuries.

In November, 1943, appellant Strong and Mai Wadley purchased a large quantity of bees and bee equipment in Gooding, Idaho, and entered into the business of bee keeping and the production of honey in - Idaho. In May, 1944, Strong employed respondent Hupfeld in Los Angeles, paid him in advance for one week’s work in Idaho, and made arrangements for Wadley to transport respondent to Gooding. Strong arrived in Gooding before the work was completed, assisted in its completion, and offered Hupfeld transportation back to Los Angeles. Inasmuch as Wadley was to return immediately, the departing employee elected to return with him. On the way while Wadley was driving, the truck skidded, overturned, and Hupfeld was seriously injured.

Respondent instituted an action against Wadley and Strong alleging a copartnership and his employment thereby, the negligent driving of Wadley and his injury as a consequence thereof. After two days of trial the court found that the business of the defendants constituted a joint venture; the defendants employed plaintiff and agreed to transport him to and from Idaho; the services performed by plaintiff benefited the interests of each defendant; the negligence of Wadley while transporting plaintiff for and on behalf of the joint venture proximately caused plaintiff’s injuries. The court concluded that plaintiff was a passenger for hire, and not a guest of defendants, and that Wadley was driving as agent for the joint venture. Thereupon judgment was entered against both defendants. This appeal is by defendant Strong only.

Appellant contends that (1) the findings are not within the issues, (2) the findings are not supported by the evidence, (3) the judgment is against the law, (4) the court erred in the admission and rejection of evidence.

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It is first urged that inasmuch as plaintiff alleged a partnership which each defendant denied, the court went beyond all issues in finding a joint venture to exist. Such contention is without support. Where the complaint alleges a partnership, relief will not be denied against the defendants

in solidó