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Anderson v. National Producing Co.

decided: April 1, 1958.


Author: Lumbard

Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

This is an appeal by the defendants, National Producing Co. and George A. Hamid from a judgment for the plaintiff for $55,000 entered by Judge Bruchhausen, Eastern District of New York, on the verdict of a jury.

The plaintiff, an aerial acrobat, was in the employ of one Peaches O'Neill who was engaged by the defendant National Producing Co. to supply an aerial act to The Hamid-Morton Circus. On May 6, 1952, during a performance in the Jaffa Shrine Temple at Altoona, Pennsylvania, where plaintiff was one of six girl aerialists, the plaintiff fell 18 feet from the rig where she was performing, thereby breaking both heels and suffering injuries to her spine. Miss Anderson alleged that the fall was caused by the absence of a safety loop on the rig and that this was due to the negligence of the riggers who were employees of the National Producing Co. and of The Hamid-Morton Circus.

Suit was brought against the National Producing Co. and George A. Hamid, the appellant, who, concededly, is not individually liable unless there was a partnership between Hamid and Col. Robert H. Morton. Morton actually ran the circus. He was the president of the corporate defendant and all its stock was held or controlled by him. Hamid's defense was that no partnership existed.

As there is ample evidence in the record to sustain the plaintiff's theory that the injuries occurred because of the negligence of the defendants' riggers, the main question before us is whether there was sufficient evidence of Hamid's partnership with Col. Morton to support the jury's verdict against Hamid as a partner. In our judgment a review of the record discloses ample evidence from which the jury could find that Hamid and Morton, in the words of the Uniform Partnership Act, ยง 6, systematically "carried on as co-owners, a business for profit."

In summarizing the proof we include two items of evidence which appellants urge should not have been received, as we find this evidence was properly admitted for reasons we state below. The two disputed items are:

1. A written partnership agreement executed in 1944 between Hamid, Morton and one Barry to carry on the circus business in Canada.

2. A book entitled "Circus" purporting to be the autobiography of defendant Hamid "as told to his son George Hamid, Jr."

The proof was as follows: The route card showing where the circus played in 1952, listed it as the "Hamid-Morton Circus" and gave its address as 10 Rockefeller Plaza, New York, which was then Hamid's office. No "showing dates" could be contracted for unless confirmed by the New York office, for the Altoona date the card noted "(Only acts confirmed by New York office used)."

In a book copyrighted November 21, 1950, entitled "Circus" which purported to be an autobiography of defendant Hamid "as told to his son George A. Hamid, Jr." a picture shows "The Hamid-Morton Circuit," and there are numerous items referring to Hamid owning and having his own circus and his pride in doing so.Pages 246 and 247 of the book describe in detail how Hamid and Morton went into partnership in the "Hamid-Morton Circus," and states "We shook hands on the deal - no written contracts. I was to put the shows together and he was to handle them on the road."

Sometime before this, in 1944, Hamid had formed a partnership with Robert Morton and one Howard Y. Barry, which, according to Barry's testimony, terminated a few weeks later. But in view of the other evidence it was permissible for the jury to conclude that Hamid and Morton continued as partners. At the trial Hamid admitted the 1944 partnership although he had previously denied it on his deposition. Hamid also conceded that in May 1954 he shared profits with Morton but claimed he was not to share any losses.

While Hamid himself testified and contended that his only relationship with the circus was that of booking agent who furnished the acts, many of the admissions he was forced to make, in his deposition and at the trial, supported the plaintiff's claim of his partnership interest: (1) He autographed and sent to many friends copies of the book "Circus" which purported to be his autobiography; (2) He actively traveled with the circus after Morton's death, doing work Morton used to do, feeling "obligations to his widow, and to contracts which had been committed, and committees called and asked if I would pitch in to help out in this emergency. I neglected a lot of my other business in order to do so, and I did."; (3) Shortly before the trial the program for the circus at Palisades Park stated that it was "Under the personal direction of George A. Hamid, Sr."; (4) After Morton's death he asked Morton's widow for an accounting; (5) Although on his deposition Hamid had denied ever being in partnership with Morton and one Howard Y. Barry, at the trial he admitted there had been such partnership in 1944 when he was confronted with Barry's testimony and a certificate of the partnership certified by the County Clerk of New York County.

This summary of the evidence bearing on the Hamid-Morton partnership helps to dispose of the two objections to the admission of ...

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