Minter v. Gidinsky

• Citation: 228 S.W. 1075
• Decision Date: 07 February 1921
• Docket Number: No. 13845.,No. 13836.,13836.,13845.
• Parties: MINTER v. GIDINSKY et al.
• Court: Court of Appeal of Missouri (US)

228 S.W. 1075

MINTER v. GIDINSKY et al.

No. 13836.

No. 13845.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Granville Minter against Charles Gidinsky and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Marley & Reed, of Kansas City, for appellent Gidinsky.

Battle McCardle, of Kansas City, for appellant Koch.

Gamble, Kennard & Trusty of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,000, and defendants have appealed.

Plaintiff was injured by the caving in of a ditch which was being dug in connection with the construction of a road bridge in the northeastern part of Jackson county, No. He was a colored man, 69 years of age, with about 45 years' experience in excavating in quarries. He had worked assisting in the excavation of the ditch from the time it was started. The ditch was 13 feet long and 9 feet wide with perpendicular walls. The north wall was 5 or 6 feet high, and the south wall 10 or 12 feet in height. Some time before the injury the ditch on the south side had been braced by an oak plank 13 feet long and 12 inches wide running lengthwise of the trench and about 4 feet below the top of the same. This plank was held in place by three 6x6 braces extending from it to the north wall. The first 6 feet of the trench had been cut through made earth, or silt, deposited by the overflow of a stream. Then came about 5 or 6 feet of soil, underneath this was a layer of sand 4 or 5 inches in depth, and in the bottom was soapstone. The made earth was soft except on top. Before the south wall fell, "it was soft dirt, * * * kinda wet looking." Below the made earth the sand was wet, and there was water seeping into the bottom of the trench. A derrick stood on the surface near the trench and 2 or 3 feet south of it. This derrick was operated by a horse and was used to lift dirt out of the excavation.

Toward the close of the day of the injury, defendant Koch concluded to put another plank along and near the bottom of the south wall parallel with the plank already mentioned. saying to the persons there employed:

"Boys, will you give us or give me a hand to help brace this so if comes a big rain between now and Monday morning it will not slide in; should a big rain come, it will not slip in?"

At that time plaintiff was shoveling in the trench, and Koch and two other men were in the ditch. Koch climbed from the ditch and procured some braces which he threw into it. The two men in the ditch thereupon put in the second plank against the south wall running its entire length and about 12 inches from the bottom of the ditch. The putting in of the second plank was completed, and plaintiff picked up one end of a third plank, which was to go between the top and lower ones, and shoved it toward the two men, when suddenly a part of the south wall between the lower plank and the upper one bulged inward; the dirt coming from under the top plank.

Plaintiff was digging close to the north side of the wall when he heard Koch tell the other men to insert the second plank horizontally. At that time plaintiff said to Koch, "Boss, that is a waste of lumber and time, putting that lumber that way." You "ought to put it up straight up and down." Koch replied, "Shut up, Dad! I know my business; I am going to put it in," and plaintiff then said, "All right, Boss." Koch testified that he did not listen to anybody in regard to how the board should have been placed, and said, "I generally pass on my own work." He further testified that the usual way to brace a ditch with wet walls was by "sheet piling"; that is, by driving stakes extending from the top of the wall to the bottom and inserting the boards between them and the earth. An expert witness for defendants testified that it would not be safe to put in a board 4 feet from the top, of the excavation and then dig the excavation to a depth of 12 feet and put in another board and then put one in the middle, nor was that the usual custom. He further testified that with earth of the kind involved in this case he would put in a second brace or board 3 or 4 feet below the first one as the ditch was being dug; that he would put in a board 4 feet from the top of the excavation, a second board 3 feet from the first board, and a third board about 2½ feet from the second; and that he would place them closer together as the excavation got deeper.

One of the issues at the trial was whether Koch and Gidinsky were partners in carrying on the work, or whether defendant Koch was an independent contractor of Gidinsky. Defendant Gidinsky was a general road contractor (grading and macadamizing) and was unfamiliar with the work of the building of a bridge such as was under course of construction at the time plaintiff was injured. Defendant Koch was familiar with that kind of work. Gidinsky was contemplating bidding on the contract for the work which was to be let by the county court of Jackson county. He and Koch looked over the place where the bridge was to be built, and Koch took measurements and figured on the work and turned the figures over to Gidinsky, and these figures were the basis of the bid. It was agreed that Gidinsky should bid for the work, and if he procured the contract he was to furnish the bond and all the money for the materials and labor, and Koch was to do the work and to employ his own men and pay them every Saturday. When the work was completed the two were to divide the profits and the losses as the case might be. The agreement was carried out.

Gidinsky was asked if he sublet the contract to Koch, and he answered:

"No, sir; I took the contract and let Mr. Koch do it for me. I turned the contract over."

He testified that he was interested only in the result. Gidinsky was at the work three or four times in the eight or ten weeks that the work had been progressing. He testified that he did not give Koch any directions as to how to do the work; that if he thought any change should be made he would not give Koch orders, but "would suggest, perhaps." There was no accounting until the work was completed. Gidinsky was on the work on the morning of the day the ditch caved in.

Plaintiff's instruction No. 1 assumes that defendants were partners and defendants complain that this was error. There was no dispute in the evidence as to the facts in regard to the relationship existing between the defendants; therefore the question of partnership or no partnership is one of law for the court to determine. Consequently, the inquiry before us is whether the facts are sufficient in law to constitute defendants partners. Stundon v. Dahlenberg, 184 Mo. App. 381, 385, 171 S. W. 37. It was stated in Torbert v. Jeffrey, 161 Mo. 645, 654, 61 S. W. 823, 825:

"In determining whether the relation between the parties constitutes a partnership, their intention governs as that intention is disclosed, not by particular expressions, but by the nature and effect of the whole contract"

Participation in the profits of the business raises a presumption of a partnership relation and is prima facie evidence thereof. Torbert v. Jeffrey, supra; Willoughby v. Hildreth, 182 Mo. App. 80, 167 S. W. 639. However, this presumption is not conclusive and may be rebutted by a showing of facts to the contrary. Sawyer v. Burris, 141 Mo. App. 108, 117, 118, 121 S. W. 321; Torbert v. Jeffrey, supra, 161 Mo. loc. cit. 655, 61 S. W. 823. As was stated in Torbert v. Jeffrey, supra, 161 Mo. loc. cit. 655, 61 S. W. 825:

"When both parties furnish the capital and are to share in the profits, ordinarily no question can arise as to the existence of a partnership. When one party contributes the capital and the other the labor, skill or experience for carrying on a joint enterprise, such a combination constitutes a partnership unless something appears to indicate the absence of a joint ownership of the business and profits. 17 Am. & Eng. Ency. of Law (1st Ed.) pp. 842, 843."

There is no contention on the part of plaintiff in this case that Koch was merely an employee or foreman a Gidinsky, but the sole question is as to whether they were partners or that Koch was an independent contractor of Gidinsky. Therefore the cases cited by defendants, where a party was sought to be held on account of the negligence of another and the question was whether the other was an employee or an independent contractor of the party, are not on all fours with the case at bar and are not applicable to a full extent.

The facts show that Gidinsky was furnishing the capital and Koch the labor, skill, and experience. We do not think there appears to be anything in the relationship shown in this case to indicate the absence of a partnership. While Gidinsky testified that he did not feel that he had any right to give Koch orders, he testified to the effect that he could suggest to Koch as to how the work should be done, and this is entirely consistent with the idea of partnership. One partner does not feel at liberty to order another partner, but merely to make suggestions. The fact that Koch was to employ the laborers and to pay them and to carry on the work is entirely consistent with the idea of...