dissent">Larson, J.

(dissenting) — I respectfully dissent. Rights and liabilities of a joint adventure are usually tested by the rules governing partnerships, and many such contractual associations turn on the determination of the right to control. On the question of rights and liabilities under the Iowa Workmen’s Compensation statutes we find no direct reference to either partnerships or joint adventures.

Section 85.61 provides: “1. ‘Employer’ includes and applies to any person, firm, association * # The term is quite broad — broad enough, it would seem, to include a partnership in the term “employer.” Many courts declare that a joint adventure is subject to exactly the same rules as a technical partnership and must be enforced by the same principles. Nelson v. Lindsey, 179 Iowa 862, 162 N.W. 3; Tusant & Son Co. v. Chas. Weitz Sons, 195 Iowa 1386, 191 N.W. 884, and citations therein. We have held the law regarding joint adventure is *733analogous to the law of partnership in many respects, but not identical with it. Goss v. Lanin, 170 Iowa 57, 152 N.W. 43.

Section 85:61 also provides: “2. ‘Workman’ or ‘employee’ means a person who has entered into the employment of, or works under contract of service, express or implied * * * for an employer, except * * The term “employee” also is broad and if the injured party is working for a party, association, partnership or joint adventure, under a contract of service, express or implied, it would seem he had but one employer, and as such it was or was not covered under the Act, depending on other factors.

It would seem offhand that the plaintiff here was the employee of both parties and, as one of them carried Workmen’s Compensation, the claimant could recover thereunder and could recover no more. This, I understand, was not the holding of the Indiana Supreme Court in Baker v. Billingsley, 126 Ind. App. 703, 708, 132 N.E.2d 273, 276. There the court held a street carnival owner’s employee, injured while assisting in erecting a Ferris wheel, furnished the owner by one in possession and control thereof for use in connection with a carnival under an oral contract for equal division of net proceeds of operation thereof between them, was the employee of both of them and hence entitled to recover compensation from the person furnishing the wheel, as well as the carnival owner. The court said therein, “It is true that a right of mutual control over the subject matter of the enterprise or over the property engaged therein is essential to a joint adventure.” Also see, on the right to control, annotations in 48 A. L. R. 1057, and 37 A. L. R.2d 406.

I would hold here that if there was a joint adventure, there was joint control, and while both were liable for plaintiff’s injury, there could be but one recovery, and, since one so injured was entitled to recover compensation under the Workmen’s Compensation Act, no further recovery is proper or contemplated.

I would affirm.

Citation profile

Relationships

How this case has been treated — in progress