right to control, a right to share in the profits, and a duty to share in any losses which may be sustained.
'A joint venture has been defined as such a combination of persons or corporations, where in some special venture a profit is jointly sought without any actual partnership or corporate designation.
'The contract must be by agreement of the parties who comprise it, though not necessarily in writing.
'Ordinarily, certain factors are present by which a joint venture is constituted.
'1. Each party to the venture must make a contribution, not necessarily of capital, but by way of service, skill, knowledge, property, rights, or money.
'2. Profits must be shared among the parties.
'3. There must be a joint proprietary interest and a right of mutual control over the subject matter of the enterprise.
'4. There is usually a single business transaction or project, rather than a general and continuous transaction.
'A joint venture is not a partnership. It is an association of parties, either corporate or personal, to engage in a single business enterprise for profit.'
'As for the meaning of the word 'employment', I am sure that all of you have a definite understanding of its meaning and significance. The relation of employment usually occurs when one known as the employer pays a salary or wage to another known as the employee in return for which the employee renders to the employer service, whether these be physical or mental, or mixed physical and mental effort or energy, by which the employer obtains particular benefits. This is fundamental, but, ordinarily, there are other incidents.
'The test of whether or not an employer-employee relation exists varies in each case, but ordinarily these factors should be considered in determining whether such a relation exists:
'1. Where was the individual working on the date in question?
'2. Was he using a particular person's equipment, or was the equipment borrowed, leased or rented by a particular person on the date in question?
'3. Whose work was he doing on the date in question?
'4. Who paid him for his work on the date in question? And the days preceding the day in question?
'5. Who protected him in Workmen's Compensation and Social Security?
'6. Who was his immediate superior at the time in question, and who gave him directions as to the details of the work he was doing?
'7. Who was in charge of the work he was doing on the date in question?
'8. Who had the right of control over him in the work he was doing on the date in question?
'These latter two factors are very important.
'In determining whether a person is the employee of another, it is necessary that he not only be subject to the latter's control or right of control with regard to work to be done and manner of performing it, but that the work which is to be performed is on the business of the employer or for his benefit.'
The jury was carefully instructed on the sole and only issue in this case and while evidence had been presented on insurance and workmen's compensation payments, as well as lawsuits in state courts, the jury was instructed to disregard these matters and consider only the one issue of whether or not Perini alone was the employer, or Perini with the other three were joint employers.
They were also instructed regarding the failure of any party to submit either testimony or exhibits, and that they could probably draw an inference that any party who had knowledge of material facts or exhibits which were in the control of one party or the other, and whose interest it naturally would be to produce them, that without satisfactory explanation, the party then failed to produce them, the jury might draw an inference that the witnesses or testimony would have been unfavorable to that party if such were presented. This was in line with the plaintiff's demand to protect the joint venture exhibit.
Undoubtedly, the plaintiff is entitled to sympathy, but he is not entitled to sympathy as against a determination by impartial law. It may be that other persons think differently than would this jury, but it is not for this Court to set aside a decision made upon the ample evidence that had been presented to this jury on the interrogatories of whether or not the plaintiff had been employed by Perini or the Joint Venture.
Upon a recapitulation of all the credible evidence, and viewing the evidence in a light most favorable to the party in whose favor the jury's verdict has been rendered, I am satisfied that the jury's verdict should not be set aside.
Plaintiff's motion for new trial will be refused.
An appropriate Order is entered.