Arnold v. Lawrence

• Decision Date: 05 February 1923
• Docket Number: 10170.
• Citation: 72 Colo. 528,213 P. 129
• Parties: ARNOLD v. LAWRENCE.
• Court: Colorado Supreme Court

213 P. 129

72 Colo. 528

ARNOLD v. LAWRENCE.

No. 10170.

Supreme Court of Colorado

February 5, 1923

Department 1.

Error to District Court, Otero County; James A. Park, Judge.

Action by C. L. Lawrence against Jeter Arnold. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Sabin Haskins & Sabin, of La Junta, for plaintiff in error.

H. M Minor, of Rocky Ford, for defendant in error.

BURKE J.

Plaintiff in error was defendant and defendant in error was plaintiff in the trial court, and they are hereinafter so designated.

Plaintiff brought this action to recover $585.15 alleged to be due him for painting defendant's dwelling and garage. A verdict was returned in his favor for $550.50 and interest and, to review the judgment thereupon entered defendant prosecutes this writ.

In the complaint, plaintiff describes himself as 'a contractor in the business of house painting, * * * furnishing his own paints, oils, varnishes, wall paper and other materials,' and describes the location of his 'store.' He alleges that defendant----

'entered into a verbal contract with him to furnish painters and materials to paint a certain dwelling house and garage, * * * in which contract and agreement the defendant promised and agreed with the plaintiff for each and every day of eight hours of work done under said contract to pay the plaintiff the sum of $5 and * * * to pay him a reasonable and fair market price for all paints, oils, varnishes, and other necessary materials that he would use in painting the defendant's said houses under said contract. And the entire cost of all of said labor and material was to be due and payable as the work progressed and at the time when the last work was done.'

The defendant admits the contract, but adds thereto that the agreement was to furnish competent workmen and do skillful work. He alleges that the men were incompetent, the work unskillfully performed, the hours short, the material wasted, and pleads his damages by reason thereof. He admits liability in the sum of $400, and tenders that amount. The replication denies all new matter.

It appears from the evidence that defendant and his wife inspected, or had opportunity to inspect, the work during its progress, and did not make the objections thereto which are set out in the answer. It also appears that such were not the reasons given for directing plaintiff to quit. The court instructed the jury, in substance, that, under such circumstances, plaintiff was defendant's servant, employed by the day, and that said defenses would not defeat his claim for wages. This was equivalent to an instructed verdict.

Whether plaintiff was a day laborer, or defendant's servant or employee, or whether he was a contractor, depends upon all the facts of the employment. The measure of his compensation is but one of these facts and not necessarily a controlling one. For the purposes of this case the following definitions are applicable: A servant is one whose employer has the order and control of the work done by him and who directs, or at any moment may direct, the means as...