Florence v. Fox
| Decision Date | 23 June 1922 |
| Docket Number | 34489 |
| Citation | 188 N.W. 966,193 Iowa 1174 |
| Parties | JOHN S. FLORENCE, Appellant, v. A. L. FOX, Appellee |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--D. W. HAMILTON, Judge.
ACTION at law, wherein plaintiff seeks to recover damages from defendant for personal injuries. Trial to a jury, and at the close of plaintiff's testimony, the court directed a verdict for the defendant. Plaintiff appeals.
Affirmed.
S. V Reynolds, A. J. Walsmith, and McCoy & McCoy, for appellant.
J. A Devitt and Shangle & Waggoner, for appellee.
The petition alleges that defendant and one Beason were a copartnership, owning and operating a sorghum mill upon the premises of the defendant, and that plaintiff was employed by them to work at said mill, and while so employed in the act of feeding cane into the mill, his hand was drawn into the unguarded rollers and injured; that defendant was negligent in not providing proper guards at and upon the rollers, and in failing to provide belt shifters or other mechanical contrivances to throw belts off and on pulleys, as provided by statute, and in failing to provide plaintiff a safe place to work.
The answer is in general denial, and that the only relation existing between him and Beason at any time was that of landlord and tenant; that defendant had nothing to do with the hiring of plaintiff; and that, if plaintiff had been so hired, it was done by said Beason; that plaintiff assumed the risk; and that his injury was the result of contributory negligence.
For reply, plaintiff says that, in his employment by defendant, through Beason, it was stipulated that the defendant would pay one half of plaintiff's wages; denies defendant's plea of assumption of risk and contributory negligence; and states further that plaintiff notified defendant of the unguarded condition of the rollers, and was promised by defendant that it would be properly equipped, and that, relying upon said promises, he continued in the work until he was injured.
Plaintiff was injured September 16, 1919. He was 71 years of age, now living at the county farm. At the time he was injured, he was feeding cane into the mill, when some of the cane became tangled or twisted around his hand, and drew it in. He does not claim that he had any conversation with the defendant in regard to his employment, or in regard to the unguarded condition of the rollers, or any promise to remedy. Over objection that it was hearsay, he testifies to the conversation with Beason as to his employment, and describes the mill, and says that it was not guarded; that it was a three-roller mill. He gives his experience with other mills, and says that he had been engaged in feeding cane mills, off and on, all his life. He tells how he was hurt, pushing with the left hand the stalks he had in the right hand, and says he pushed until the right hand went into the roller; that, when the cane gets started through the mills, the rollers draw the cane in; that it went through itself; that the mill was run by a gasoline engine; that he had done some of the stripping of the cane before. As to the conversation with Beason in regard to his employment, plaintiff testifies that Beason said that Mr. Fox was to be the paymaster, that witness would have to work under those conditions; that thereafter, he went right and started to work at Fox's place.
As we understand the record, plaintiff was grinding cane which had been raised on the premises leased by defendant to Beason, although the record is not entirely clear. The record is:
It is argued by the plaintiff that defendant and Beason were operating a custom cane mill for profit. We do not so understand the record, and find nothing in the evidence to indicate that such was the fact. Appellant further states and argues that the operation of the cane mill was an out-and-out manufacturing enterprise, and had nothing to do with, nor was it incident to, their farm lease. We think appellant is laboring under a misapprehension of the record in regard to this. The agreement between defendant and Beason in regard to the cane mill in question was included in or made a part of a written lease between defendant and Beason, by which defendant, as party of the first part, leased to Beason 120 acres of land for one year from the 1st of March, 1919; and recites that second party, in consideration of the leasing of the premises, as above set forth, covenants and agrees with the first party to pay rent for the same in the manner following,--that is to say, as per slip attached thereto. This slip provides that first party is to furnish the cows which are to be cared for on the place, and all calves are to be fed until they are old enough to live on the grass, when first party is to remove them; the milk and cream to be accounted for, and first party to have one half of the proceeds. Each party to furnish, share and share alike, of the hogs and brood sows, and share alike in the profits and increase from same, and both parties to share and share alike in all poultry raised on the place. First party sells to second party one half of the rye now growing on the place for $ 20, and second party is to pay for same in work on the place during the year. First party is to furnish binder, and both parties are to pay all expense of threshing, share and share alike, including board of help. First party furnishes the gasoline engine, and second party furnishes a cane mill, and each is to pay one half of the expense of same. Both parties must be informed of all sales of stock or buying of stuff for the farm, and each has equal rights. Second party is to have a suitable garden patch, and the fruit from the orchard. Second party is to furnish a team, and same is to be fed on the place. In case more horses are needed, first party will furnish them during the time needed. The lease contains other and usual covenants; that second party shall yield possession of the premises in as good condition, etc.; that second party is to farm the premises in farm-like manner, and raise the greatest amount of grain that the nature of the soil and the season will permit; that second party is to preserve and protect fruit and ornamental trees from injury, and keep hedges and fences in repair. It also provides that the grain raised shall not be sold until the rent is paid, and contains other provisions.
Appellant argues the questions of negligence, contributory negligence, assumption of risk, and so on; but appellee says that there is but one question in the case, and that is whether defendant and Beason were partners, and concedes that, if it be so held, the case should have gone to the jury. Appellee cites Ault Co. v. Baker, 26 Ind.App. 374 (58 N.E. 265), Field v. Schricher, 14 Iowa 119, 122, and Ditson v. Ditson, 85 Iowa 276, 282, 52 N.W. 203, to the proposition that the construction of the contract was a question of law for the court, and that it was for the court to determine whether it constituted a partnership contract, and was so intended by the parties. This is particularly so where the contract is in writing and is unambiguous, as in the instant case. 20 Ruling Case Law 849.
Plaintiff has the burden to show the existence of a partnership. 20 Ruling Case Law 849. There are several tests usually relied upon to determine whether a partnership exists, one of which is the intention of the parties. 20 Ruling Case Law 831. In Lutz v. Billick, 172 Iowa 543, 546, 154 N.W. 884, it is said that this is the crucial test. It will be observed that nowhere in the lease do the parties refer to the arrangement as a partnership. This of itself is not necessarily controlling. The defendant, as the owner of the farm, is presumably the responsible party financially. If a partnership existed, it might be possible for the tenant, within the scope of the partnership, to purchase property and make the owner of the land responsible therefor in an amount largely in excess of the rent, and each might be responsible for the torts of the other, committed within the scope of the agency. The courts hold quite generally that there are obvious reasons for holding that farm contracts or agricultural agreements, by which the owner of land contracts with another that such land shall be occupied and cultivated by the latter, each party furnishing a certain portion of the seed, implements, and stock, and that the products shall be divided at the end of a given term, or sold and the proceeds divided, shall not be construed as creating a partnership between the parties. Such agreements are common in this country, and are usually very informal in their character, often resting in parol. In the absence of stipulations or evidence clearly manifesting a contrary purpose, it will not be presumed that the parties to such an agreement intended to assume the important and intricate responsibility of partners, or to incur the inconveniences and dangers frequently incident to that relation. As supporting this proposition, without discussing the cases, the following may be cited: Shrum v. Simpson, 155 Ind. 160, 57 N.E. 708; Bradley v. Ely, 24 Ind.App. 2 (56 N.E. 44); Williams v. Rogers, 110 Mich. 418, 68 N.W. 240; Cedarberg v. Guernsey, 12 S.D. 77, 80 N.W. 159; Bowers v. Graves & Vinton...
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