Ellerman v. Kite, 78-216

Citation626 P.2d 696
Decision Date05 July 1979
Docket NumberNo. 78-216,78-216
PartiesRachel ELLERMAN, individually and as next friend of Carl H. Lytle, Jr., a minor, Plaintiffs-Appellants, v. Terrance Wayne KITE, individually and as agent for Anco Construction Company, Ltd., a Colorado corporation, and Yerby Banics, Defendants-Appellees. . I
CourtCourt of Appeals of Colorado

Berger & Rothstein, P. C., David Berger, Commerce City, for plaintiffs-appellants.

Yegge, Hall & Evans, Eugene O. Daniels and Duncan W. Cameron, Denver, for defendants-appellees.

KELLY, Judge.

Rachel Ellerman, as next friend of Carl H. Lytle, Jr., a minor, brought an action against the defendants for damages for injuries suffered by the child in an automobile accident. The trial court entered summary judgment in favor of Anco Construction Company, Ltd., and a proper order under C.R.C.P. 54(b) was entered. Ellerman contends that there are genuine issues of material fact precluding the entry of summary judgment. We disagree, and therefore affirm.

The controversy between the parties revolves around the question whether Terrance Wayne Kite, who was driving the vehicle at the time of the accident, was acting as Anco's agent or within the scope of his employment by Anco. The uncontroverted facts in the record show that, at the time of the accident on Saturday, February 2, 1974, both Kite and Yerby Banics (whose true name appears to be Banks Yerby) were employees of Anco Construction Company, Ltd. Kite was employed as a plumber, and Yerby was a plumber's foreman. The truck being driven by Kite at the time of the accident was owned by Yerby or by Yerby's company, BYCO Plumbing Co., and the accident occurred while Kite was returning from a garage at which he obtained a Colorado safety inspection sticker for the vehicle.

Anco stated, in answers to interrogatories, that there was an oral agreement between Yerby and the president of Anco for Anco's use of the truck at a monthly rental of $272.73. The answers also indicate, however, that the monthly rental was first paid for the period from March 1, 1974, to April 1, 1974, and that, prior to that time, Yerby had been reimbursed by Anco only for actual expenses incurred in the operation and maintenance of the truck.

It is alleged in the complaint that Anco was Kite's employer on February 2, 1974, and that Kite was, at the time of the accident, "in the scope and course of Anco's business as its agent and servant." In support of its motion for summary judgment, Anco filed the affidavit of its president admitting the employment status of Kite, denying ownership of the vehicle involved in the accident, asserting that Kite was not required to report to work on Saturday, February 2, 1974, and that, on that date, Anco had no control or right of control over his actions. No counter-affidavit was filed by Ellerman....

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1 cases
  • Lytle v. Kite, 85SC483
    • United States
    • Colorado Supreme Court
    • November 3, 1986
    ...728 P.2d 305 ... Rachel LYTLE, formerly known as Rachel Ellerman, ... individually and as next friend of Carl H. Lytle, ... Jr., a Minor, Petitioners, ... Terrance Wayne KITE, individually and as agent for Anco ... ...

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