Farmers' Reservoir & Irrigation Co. v. Fulton Inv. Co., 11538.

• Decision Date: 21 February 1927
• Docket Number: 11538.
• Citation: 81 Colo. 69,255 P. 449
• Parties: FARMERS' RESERVOIR & IRRIGATION CO. v. FULTON INV. CO.
• Court: Colorado Supreme Court

255 P. 449

81 Colo. 69

FARMERS' RESERVOIR & IRRIGATION CO. v. FULTON INV. CO.

No. 11538.

Supreme Court of Colorado

February 21, 1927

Department 2.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the Fulton Investment Company against the Farmers' Reservoir & Irrigation Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Smith & Brock and John P. Akolt, all of Denver, for plaintiff in error.

Edwin H. Park, of Denver, for defendant in error.

ADAMS J.

The Fulton Investment Company, plaintiff in the district court recovered judgment against the Farmers' Reservoir &amp Irrigation Company, and the latter brings the case here for review. They will be hereinafter designated as in the trial court.

Two causes of action were alleged: First, trespass vi et armis in taking and carrying away a certain pipe line theretofore installed for the carriage of water to plaintiff's premises. Second, negligent conduct in the removal of the pipe line, resulting in a fire which destroyed the stubble on plaintiff's wheat field. Before the case went to the jury, plaintiff voluntarily dismissed to first cause. The verdict was for plaintiff on the second cause.

1. This case has received our attention before. Fulton Co. v. Farmers' Co., 76 Colo. 472, 231 P. 61. The question of defendant's negligence was digested, and it is there said, at page 475 of the opinion (231 P. 62):

'The evidence makes a strong prima facie case, i. e., that two employees of defendant were the only persons who could have caused the fire, and negligence is the only hypothesis which would acquit them of arson, if the firing of stubble can be called arson, and we cannot presume crime or willful wrong.'

We have compared the evidence at the two trials, and find the testimony bearing upon negligence as strong, if not more so, at the second trial than at the first. We must therefore adopt the foregoing language, found in our previous opinion. The jury did not find sufficient evidence, if any, to rebut the prima facie case made by plaintiff. The force we give to the completed works of juries, as announced in their verdicts, acting within their constitutional and statutory province, has been so frequently expressed that it scarcely needs repetition. See Cooper v. Newmyer, 80 Colo. 246, 250 P. 559.

2. Another defense was that the work of removing the pipe line was under the exclusive control and direction of an independent contractor, by reason of which defendant pleads nonliability for the damage. But the evidence is otherwise. Hayes was the chief engineer of the farmers' company and Seeley, according to the company, the contractor. Seeley, defendant's witness, testified on cross-examination without objection, that Hayes was the supervising engineer of the farmers' company; that Hayes was on the work many times; that 'he (Hayes) was supposed to be my boss.'

'Q. (To Seeley). This particular work was done under his supervision? A. It certainly was. He was the inspector.

'Q. And if you didn't take the pipe out and do the work according to his ideas of what was right about it, he could have stopped you? A. He, no doubt, could.'

Hayes, also defendant's witness, testified that he inspected every piece of pipe that was taken out to see that it was all right; that he knew the weather was dry; that the wheat had just been harvested, was subject one is a servant or an independent contractor.

It is not always easy to say whether one is a servant or in independent contractor. It must be determined by all of the facts of the employment. Defend...