Seitz, Aldisert and Rosenn, Circuit Judges.
This is an appeal from a judgment entered by the district court on a jury verdict for plaintiff and from an order of the district court denying appellant's motions for a judgment n.o.v., for a new trial, and for an amendment of judgment.
Plaintiff, William R. Beavers, Administrator of the Estate of Malcolm R. Mason, commenced a diversity action under the Pennsylvania Survival and Wrongful Death Acts*fn1 against West Penn Power Company (West Penn) and appellant, Bell Telephone Company of Pennsylvania (Bell). Malcolm R. Mason (decedent), aged ten, was killed when he came into contact with a high tension wire while climbing a tree near the edge of his parents' property. The wire was owned and maintained by West Penn and was, pursuant to the terms of an agreement between the defendants, strung on poles owned by Bell. Plaintiff alleged that West Penn was negligent in maintaining its wires and the poles to which they were attached, in failing to insulate the wires, in failing to notify decedent's parents of a dangerous condition existing on their property, and in failing to exercise the degree of care owing to the public generally. He also alleged that West Penn was a trespasser since its wires were outside the utility easement on the Mason property.
Plaintiff claimed that Bell was negligent in failing to properly install, maintain, and/or inspect the telephone poles and the attached wires, in using defective poles, in failing to warn decedent's parents of a dangerous condition existing on their property, and in failing to exercise the degree of care it owed to decedent. He also alleged that Bell was a trespasser since its poles leaned outside the utility easement on the Mason property. Bell denied the allegations of negligence and trespass and claimed that the decedent was guilty of contributory negligence.
Bell also filed a third-party complaint against decedent's parents, alleging that they were negligent in the supervision of decedent and in failing to warn West Penn or Bell of an allegedly dangerous condition on the Mason property. Bell claimed that the parents were liable over to it for any sums for which Bell might be liable or, alternatively, that it was entitled to contribution from them. The parents denied Bell's allegations and set up the intra-family tort immunity doctrine as a defense.
The trial judge ruled as a matter of law that West Penn and Bell were engaged in a joint venture with regard to the maintenance of the electric transmission line involved and instructed the jury to impute the negligence of Bell or West Penn to the other. In connection with the trespass issue he ruled, contrary to Bell's contention, that Bell's easement was limited to a 10-foot strip upon the Mason property along the northeast boundary line of the property.
In answer to special interrogatories the jury found that the negligence of West Penn and Bell and the negligence of the parents caused the death of decedent; that decedent was free from contributory negligence; that the point at which decedent met his death was on his parents' property but more than 10 feet from the northeast boundary line of such property; and that the damages sustained by the estate as a result of the death were $85,000. Judgment in that amount was entered against Bell and West Penn.*fn2 Judgment in favor of the parents was entered on Bell's third-party complaint. After the denial of its motions Bell appealed. West Penn settled with plaintiff after the entry of the judgment and thus is not a party to the appeal.
Bell first asserts that the district court erred in denying its motion for a judgment n.o.v. as to plaintiff's judgment against it. The evidence presented at the trial, which will be discussed hereinafter, demonstrates that it would not be unreasonable for a jury to find that the acts of Bell constituted either a trespass or negligence which proximately caused the death of decedent. Therefore, it was not error for the district court to deny Bell's motion for judgment n.o.v. We now consider whether a new trial is required.
Bell assigns as error the ruling of the district court that it and West Penn were engaged in a joint venture in regard to the electric transmission line involved in this case. The court charged the jury that "because the electric transmission line involved in this case was maintained by the two corporations, they were engaged in a joint venture. And therefore for the purposes of this case and under the evidence in this case, each of them is equally liable for the actions or failure to act of either or both of them." As a result of this instruction we think it is clear that the jury was permitted to impute the negligence of Bell or West Penn to the other. Was this error?
In order to impute negligence under the controlling Pennsylvania law the plaintiff was required to establish a joint venture. Joint venture is an amorphous legal doctrine. It is sometimes said to be an association of parties to engage in a single business enterprise for profit. It may arise from an express contract or may be implied from the acts and conduct of the parties. To constitute a joint venture under Pennsylvania law certain factors are essential: 1) each party must make a contribution of capital, materials, services or knowledge; 2) profits must be shared; and 3) there must be a joint proprietary interest in and right of mutual control over the subject matter of the enterprise. Richardson v. Walsh Constr. Co., 334 F.2d 334 (3d Cir. 1964); McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958). What are the facts here?
In 1933 Bell entered into an agreement with West Penn by which each was given the right to use the other's poles to string its wires. The agreement was clearly designed to prevent the unsightly and uneconomical duplication of utility poles. Under the agreement, ownership of jointly used poles remained in the original owner as did the exclusive obligation to maintain them. Bell was entitled to reimbursement from West Penn for a share of the maintenance expenses unless the need for maintenance was due to conditions for which Bell alone was responsible. In the instant case, while West Penn was permitted to use Bell's poles in stringing its wire, ownership of the poles remained with Bell. From these provisions of the agreement we are unable to find that Bell and West Penn had a joint proprietary interest in or right of mutual control over the subject matter of their agreement. Consequently, we can find no permissible basis under Pennsylvania law of joint venture for here imputing West Penn's negligence to Bell solely by virtue of the relationship created by their agreement.
Plaintiff, citing 29 C.J.S. Electricity § 57, at 1130, asserts that "a present danger caused by present maintenance of wiring in a negligent manner concurring with present negligence of another, both creating the conditions causing the mishap, renders both liable." Assuming the correctness of the statement of the law, such a rule, absent imputed negligence, still ...