*1 Argued 14; July 1, June affirmed v. STATE INDUSTRIAL PRESTON ACCIDENT
COMMISSION et al. 957)
(149 (2d) *2 Ralph Campbell, appellant. H. of Salem, for Attorney-General, B. Cummins, Elliott Assistant (George Attorney-General, Salem, Neuner, L.C. Attorney-General, Marsters, Assistant K. John Attorney-General, Crowe, Assistant all of Salem, brief), respondents. for Salem, (Ross Lewelling, Ross, Custer of Salem, & brief), intervenor-respondent, on the J. Maden. *3 Before Bailey, Chief Justice, Belt, Rossman, Lusk. and Associate Justices. Brand,
BRAND, J.
Aeeirmed.
This is an action John Preston the W. State Industrial Accident Commission, defendant, and plaintiff J. H. Maden, intervenor-defendant. The compensation injury seeks to recover for an suffered employment him in the course of his in hazardous industry, pursuant provisions to of the the Workmen’s Compensation only question Act. The involved is plaintiff employer or not whether the and his subject Compensation to the Workmen’s Act at the injury. time of the At the close of the the court trial, jury directed the return a verdict to the effect that subject employed plaintiff as a workman the was Compensation Oregon and Law Workmen’s judgment for the defendants was entered plaintiff appeals. verdict. The BRAND, J. and H. Maden are brothers. B. Maden during logger and times in B. Maden is
Jesse question engaged logging woodcutting. in was agent for the local International H. Maden was engaged Company and H. Maden was as J. Harvester implement operated Company business and in the shop repair near Salem. §§ 102-1712,102-1721,Jesse
Pursuant to O.C.L.A. rejection logger, filed in the usual form Maden, Compensation provisions Workmen’s Act of the occupations all hazardous which he as to might engage. engaged in the future or then was bring again him under no action to Thereafter, he took July, plaintiff employed. was Act. engaged bucking logs, August while he On single presented injured. A for our was plaintiff contends that he was the The determination. part- employee B. Maden and J. Maden as of Jesse joint The defendants contend adventurers. ners employee plaintiff of J esse B. Maden ivas that the neither a only H. Maden was nor and that J. logging joint business. in the adventurer appellant [plain- “if the concedes that solely.of employee B. Maden in tiff] this operation adventure, and not of * * *4 agree rejection effective We be the would then Compensa- plaintiff under the recover cannot that the B„ solely employee of Jesse the if he Avas tion Act rejection. no If there was Maden who filed the joint partnership or adven- substantial then Maden, Maden and H. B. ture between Jesse clearly right. A judgment for the defendants was the summary suffice. brief of the evidence will substantially undisputed. The direct facts are The is all to the effect the defendants evidence submitted be- adventure that there no was There no direct evidence tween the brothers.
any partnership agreement, written or oral. Jesse plaintiff plain- B. hired the Maden at the time of employment tiff’s he had no reason believe that anyone than other Jesse Maden was involved in logging the business. Jesse B. Maden had exclusive plaintiff’s and control of the direction work and of operation. logging There is no direct evidence any agreement profits to share or losses between or that H. Maden had brothers, interest in logging equipment, logging or in business, except as hereinafter indicated. J. Maden had no logging conversely, or control over the and, direction B. Maden had no connection Jesse with the J. H. Maden Notwithstanding Company. testimony the direct plaintiff forth, above set contends that the con- parties was such as to an duct of the raise inference they partners and that the should jury. plaintiff to the The have submitted been testi- B. Maden hired him, fied that added: man B. Maden was the “Well, who hired me particular see, I far as could and as time when employed, operating he the one who I was was on 1 seen his brother out there.” it but later testimony on which relies is defendants. substance it indi- contradicted *5 B. Maden extent cates that Jesse was indebted to the thousands of dollars to his H. brother, of some J. financing brother, and that J. H. Maden was his Maden, logging opera- Maden, B. in connection with the Jesse tion. following procedure employed pay- in was the employees logging operation: they
ment would B. from Jesse Maden receive statement their time running they present it business; the would who was place and H. Maden at his of business would to J. procedure pay. him their A similar was receive from money owing to with reference to Jesse followed logs products sold Maden on account of and wood Upon parties. him B. Maden to third orders Jesse payment logs purchasers for the to J. H. made large B. Maden was the owner of Maden. Jesse repairs logging equipment. When were amount of repair shop necessary, equipment was taken to the repairs made. The un- Maden and were H. J. kept testimony disputed H. Maden discloses J. ledger in all of account with his brother an accurate foregoing B. Maden transactions. When Jesse help, money payment H. Maden of his J. for the needed against charged amount Jesse on advanced it money upon due esse, order of J When, the books. paid persons H. Maden, to J. him from third was it' became the books. When credited on Jesse logging equipment, repairs necessary to the to make generally H. repairs made J. Maden who were those occasions the charged therefor. On some his brother H. Maden was repairs a nature that J. of such necessary and under such cir- facilities without the perform requested firm to another he cumstances against charged who, Maden which was work charged against turn, H. Maden cost in Jesse. portion promissory for a notes of his brother held the portion of it was of the indebtedness and charged open account. Interest was portion took H. Maden at least a of the account. security mortgages form of chattel and held logging equipment. against substantially all of Jesse’s enough varying money amounts, Jesse drew *6 living expenses. All of time, from time to to cover his by H. the balance funds received J. Maden after paying applied bills Jesse’s was to the reduction of n Jesse’s indebtedness and credited to Jesse by kept secretary. books which were H. J. Maden’s plaintiff The had seen J. Maden on one or two vicinity operation occasions in the of Jesse’s and had pay of his received some from H. J. Maden. But the plaintiff himself testified: “Q. And J. H. Maden didn’t any ever exercise you you control over knew of? He didn’t boss
you you buck, or tell where to work or hoiv much to or “A. of the details? he never
No, did.
& You “Q. started work for B. [refer- J. Maden? ring July, 1942] right. “A. That’s
you you? “Q. Now [*] [*] had no [*] during dealings all the at with Jas. H. Maden all, did time you worked up there personally. “A. No, none employed by
“Q. You were J. B. Maden? my I employer, Yes, “A. think my he was boss.” Osborn, Witnesses Mansveld and Smith were called by they and all testified that working were Jesse Maden. purchased logging- for the
When new tires were operation, they bought through H. Maden were twenty-five percent means of secured a which Jesse charged cost to H. Maden discount, but the was logging trucks and oil for the Jesse. Gas purchased from H. Maden and the trucker would ‘ ‘ ’41Ford’ and B. Maden’ and make a note of it “as J. gas and so much oil.” undisputed
It the witnesses is the testimony The B. Maden was “boss.” that Jesse other transactions between numerous discloses parties, the evidence of the conduct we find that but entirely consistent with their direct of the brothers testimony transactions in that all of the which consistently participated treated were ELJ. Maden parties and debtor transactions. creditor both .as essentially dealings between the brothers same financing they had his been Jesse secured would have from his the distinction brother, instead from a bank extremely being liberal in the Maden was EL that J. extend- to his brother of credit extension could ing which Jesse minor accommodations other *7 undisputed The probably elsewhere. not have secured if in- that when and Jesse’s to the effect evidence liquidated, should be H. Maden to J. debtedness any kind in the further interest no have latter would by Jesse. logging conducted business that H. Maden retained is some There caterpillar which he had furnished tractor ato the title being main agreement that Jesse was to Jesse, to expense and that as soon repairs at his own all tain charge up” “squared H. Maden would got as Jesse price. regular That him transaction retail at the it to any prove partnership. not tend does
561 Upon a evidence, review of all of most that H. Haden, that can be said is a course of partners joint did acts which conduct, adventurers However, do. his entire conduct is also also consistent undisputed all of and with the direct evidence which partner merely that he discloses was not a but was extending financial to his brother. assistance findWe suspicions attempt faith no of bad at an evasion on part of J. H. Haden. partnership joint
The distinction between importance though adventure is of no in this case for legal adventure is not in strict sense a co- partnership, principles applicable the rules and to a govern rights, relation and control the obligations parties duties, and toas each other. Capitol (2d) McKee v. 164 P. Dairies, 1,Or. 1013. ensuing brevity employ discussion shall for we “partnership” “joint if the term inclusive ad venture.” in this case is whether, as between partners.
themselves, the brothers If employer, Haden in fact and law the sole then the parties Compensation were not under the Workmen’s Act aud could not recover. While, as to third may persons, one in some instances be held to be a by estoppel though (O.C.L.A. one fact, § Babcock 373) 79-308; Katz, Co. Ore. 64, 253 P. application no that rule has in this case. There is pleading proof support nor neither such claim. Bank v. American Port Cedar Co., Products Orford (2d) proper 1014. 140 Or. Whether, pleading proof, persons not otherwise under the subject solely by could be held to it Act reason of a *8 562 by estoppel” brought
“partnership
in an action
an
injured
the Commission is to be
workman
question is not
us.
doubted, but the
before
Partnership
presumed,
is never
hence the bur
establishing
upon
partnership
party
of
is
den
alleges
Hartley,
it.
144
P.
368,
who
Herrold v.
Or.
24
Machinery
(2d)
Copenhagen,
338;
Co. v.
138
Burke
Or.
(2d)
Beals,
H. H.
Co. v.
120
886;
Warden
Or.
support
of his
“A
563 carry persons on as co-owners a business for profit.” § L. A. O. C. 79-201. determining partnership
“In a whether exists, apply: these shall rules
“(1) Except provided by [relating §79-308 partnerships by persons estoppel] to partners third who are not partners as to each other not are as to
persons. “ (4) by receipt person of a of share profits he is a prima of business is facie in the business, but such no profits inference shall be drawn if such received payment: in
“(a) As a debt instalment or other- ;wise
“(d) though As interest payment a loan, profits amount of with the varies * * § of the *.” business O.C.L.A. 79-202. * * * “ general As a in rule, order to constitute partnership community inter se, the of interest parties between must of be such a nature that coprincipal agent it makes each member a and an of all the members in the business with au thority right or in the administration, control or disposal property.” of the or its business First Eugene Williams, National Bank Or. (2d) at 20 P. 222.
Partnership product voluntary is contract, implied. express Partnership, § or Jur., 40 Am. prevailing p. arbitrary 136. The view is that no test partnership but that the existence of a conclusive, substantially expressed legal depends intent parties: what is actual character relationship point of fact intended and does that relationship partnership point to a amount of law? generally applicable, this
As statements
partnership
as:
has defined
court
“
per-
competent
or more
‘A contract
two
money,
place
skill,
labor and
effects,
their
sons to
commerce or busi-
in lawful
them,
all of
some
profit
share the loss in
ness, and to divide
proportions.’
Kent,
Hansen v.
Comm.”
certain
Bogan,
between
adjusted.”
Reine,
v.
65
House
Or.
Music
Eilers
Even the conclusively partnership. of the existence a not establish does Hartley, supra. In H. H. ro ld v. Worden Her supra, held that where both com Beals, this court v.Co. munity in a and common control interest business of sharing profits lacking, of of the business is thereof partnership. Again, a to constitute not sufficient have held: we “ community ‘Partnership of in- interest, and always
dependently same considered, are not
5G5
thing,
community
is a
nor
mere
of interest suffi
agreement
an
to
cient, but there must be
share
profits
profits
and
and such
must be shared
losses,
enterprise,
of
result
the adventure or
which
simply
both are
and not
interested
as measure
”
compensation.’
Shebley Quatman,
441,
v.
66 Or.
And
v. McGowan,
134
68.
see:
131 Or.
Smith
522,
Murphy
Reverting to partnership, the definition of in the § L. act, uniform C. A. 79-201, O. we find that coowner- though ship necessarily specific business, property, is of the essence. Here there was no evidence *11 coownership. of such Under the act the business must profit. for carried on is a be There not scintilla of that J. H. Maden ever evidence received claimed any profits any. in the if such, interest there were carry associates, as coowners, When a business they profit, presumed it is will likewise share the bur- any den losses. There no evidence of of is risk of loss every by than assumed other that which J. Maden upon relying respon- assumes the financial creditor sibility of his debtor. § L. observe from the O. C. A. act, 79-202,
We receipt by person profits a of of that the a share is prima he a bnt facie evidence that is “no profits shall be drawn” if such snch inference were payment Assuming of a debt. that there received enterprise, logging profits un from the were they disputed received in evidence shows that By plain partial payment of a debt. mandate inference arose there no statute, from. find no substantial evidence of au We right thority or in the administration of the business form nor find actual intent to do we evidence partnership. undisputed evidence discloses pays up and if his indebtedness to J. H. when in, the latter will have no further interest Maden, logging business. connection Under the rule with, supra, plaintiff’s v. Reine, of Eilers Music House insufficient. evidence is upon rely
The defendants Judson Bee Hive Auto Company, 297 P. 1050, 136 Or. Service L. R. it was held that evidence rais-. 74 A. wherein ing might to a be an inference favorable of law if the entire evidence overcome as matter that but one reasonable deduc- is of such character unnecessary But made it is tion could be therefrom. to that doctrine. The mere for us resort intro- some conduct con- evidence of which is duction in partnership, equally but with the existence of sistent necessarily does nonexistence, its consistent with partnership when the burden of an inference of raise plaintiff. most proof its favorable only plaintiff’s aspect, rises the level speculation. bare *12 as here, relevant facts When, are substan tially undisputed, as to not a whether or exists one law the court. In re Andersen’s Estate, Or. P. 94, 188 164, 198 236.
Being opinion that there was no substantial partnership, judgment of the circuit court is affirmed.