Baird v. Chokatos, 11670

• Decision Date: 17 August 1970
• Docket Number: No. 11670,11670
• Citation: 27 St.Rep. 629,156 Mont. 32,473 P.2d 547
• Court: Montana Supreme Court
• Parties: Nelson BAIRD, Plaintiff and Appellant, v. John H. CHOKATOS, a single man, and Themis Clessuras, a married woman, and Sophia Lambros, a married woman, and James E. Schaff, d/b/a Ace Plumbing, and Russell S. Leslie and 4 B's Restaurants, Inc., a Montana Corporation, Defendants and Respondents.

Page 547

473 P.2d 547

156 Mont. 32

Nelson BAIRD, Plaintiff and Appellant, v. John H. CHOKATOS, a single man, and Themis Clessuras, a married woman, and Sophia Lambros, a married woman, and James E. Schaff, d/b/a Ace Plumbing, and Russell S. Leslie and 4 B's Restaurants, Inc., a Montana Corporation Defendants and Respondents.

No. 11670.

Supreme Court of Montana.

Submitted June 22, 1970.

Decided Aug. 17, 1970.

Hugh G. Kidder, Gille V. Wooten argued, Missoula, for appellant.

Herron & Reber, Clayton R. Herron argued, Helena, Garlington, Lohn & Robinson, Sherman V. Lohn argued, Boone, Karlberg & Haddon, Karl R. Karlberg argued, Worden, Worden, Thane & Robb, Norman C. Robb argued, Missoula, for respondents.

CASTLES, Justice.

From a summary judgment for the defendants entered in the district court of the fourth judicial district, Missoula County, plaintiff appeals.

On April 18, 1967, Nelson Baird (hereinafter referred to as appellant) was injured by a cave-in of a ditch being excavated by Ace Equipment Company for construction of a restaurant building located on the southeast corner of the intersection of East Broadway and Washington streets in Missoula, Montana. Appellant was employed by Ace Equipment Company and insured under the Montana Workmen's Compensation Act. Appellant accepted $2,100 in compensation payments for his injuries and later settled his claim for an additional $10,000 lump sum payment. Appellant then commenced a third party tort action against John H. Chokatos, Themis Clessuras, and Sophia Lambros, owners of land on which the restaurant was to be built; 4-B's Restaurants, Inc., lessees and investors in the restaurant; Russell S. Leslie, contractor for carpenter work and over-all coordinator; and James E. Schaff, subcontractor for plumbing installation; all respondents herein.

Landowners Chokatos, Clessuras, and Lambros had an agreement with 4-B's to purchase certain land and contribute $85,000 toward construction cost of a restaurant to be built on the land. 4-B's designed the restaurant, paid the cost of construction over $85,000, and agreed to lease the restaurant from the landowners after construction was completed. 4-B's also hired Leslie to construct the restaurant, obtain subcontractors as needed, and coordinate phases of construction. Leslie engaged Schaff as a contractor to install plumbing for the project and Ace Equipment Company to dig a trench for sewer lines, potable water lines, and sprinkler lines from water and sewer mains in the street to the new building.

The undisputed evidence disclosed that Leslie described final objectives desired of all subcontractors, but neither Leslie nor any of the other parties made suggestions or exercised any control over means and methods to be used by subcontractors in completing their respective objectives.

The question on appeal is whether or not appellant as an employee of Ace Equipment Company can hold landowners, contractee, contractor, and subcontractor liable under Montana law for personal injuries received on the job when exclusive control of means and methods of digging the ditch resided in Ace Equipment Company. Section 92-204, R.C.M.1947, allows such an action when an injury is caused by 'the act or omission' of a third party.

To answer this question appellant's status and his relationship to other parties in the suit must be determined.

Based on the undisputed evidence referred to above, this Court finds Ace Equipment Company to be an independent contractor under a Montana case which thoroughly investigated qualities of an independent contractor. In Allen v. Bear Creek Coal Co., 43 Mont. 269, 285, 115 P. 673, 679, this Court said:

'The relation of the parties under a contract of employment is determined by an answer to the question: Does the employee in doing the work submit himself to the direction of the employer, both as to the details of it and the means by which it is accomplished? If he does, he is a servant, and not an independent contractor. If, on the other hand, the employee has contracted to do a piece of work, furnishing his own means and executing it according to his own ideas, in pursuance of a plan previously given him by the employer, without being subject to the orders of the latter as to detail, he is an independent...