Merrill v. Duffy Reed Const. Co.

Decision Date28 June 1960
Docket NumberNo. 8834,8834
Citation353 P.2d 657,82 Idaho 410
PartiesA. Stanley MERRILL, Plaintiff-Appellant, v. DUFFY REED CONSTRUCTION CO., a corporation, and Ted Johns, Defendants-Respondents.
CourtIdaho Supreme Court

Gee & Hargraves, Pocatello, for appellant.

L. F. Racine, Jr., Robert C. Huntley, Jr., Pocatello, for respondents.

SMITH, Justice.

Respondent Duffy Reed Construction Co., hereinafter sometimes referred to as the company, prior to and on June 21, 1957, was engaged in constructing a relocated portion of U. S. Highway 30 North, some five miles west of American Falls. Respondent Ted Johns was a grade foreman for the company. Appellant by use of his truck was engaged in hauling dirt for a road fill on the construction project.

June 21, 1957, appellant received severe injury when respondent Johns backed the company's tractor and road tamper against appellant who, at the time, was at the front end of his accidently over-turned truck, between it and the company's tamper.

Appellant commenced this tort action for damages, alleging respondents' negligence in the premises; and further, that at the time he sustained the injury the relationship of principal and independent contractor existed between him and respondent company. Respondents, after denying negligence on their part, affirmatively allege that at such time the relationship was that of employer and employee, and that, therefore, appellant's remedy is governed by the workmen's compensation law.

Respondents moved for summary judgment on the ground that the pleadings and depositions show that they are entitled to judgment as a matter of law. Although appellant resisted the motion the trial court granted it, entering the judgment July 29, 1959, in respondents' favor. Appellant appeals.

The only question presented by appellant's assignment of error is, whether the 'pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Idaho Rules Civ.Proc. rule 56(c).

The trial court, when confronted by a motion for summary judgment, must determine if there are factual issues which should be resolved by the trier of facts. On such a motion it is not the function of the trial court to weigh the evidence or to determine those issues. Moreover, all doubts must be resolved against the party moving for a summary judgment. Griffeth v. Utah Power & Light Company, 9 Cir., 226 F.2d 661; G. Ricordi & Co. v. Slomanson, D.C., 19 F.R.D. 196; Cox v. American Fidelity & Casualty Co., 9 Cir., 249 F.2d 616; Booth v. Barber Transportation Co., 8 Cir., 256 F.2d 927; Girard v. Gill, 4 Cir., 261 F.2d 695; McHenry v. Ford Motor Co., 6 Cir., 269 F.2d 18; United States for Use and Benefit of J. A. Edwards & Co. v. Thompson Construction Corp., D.C., 22 F.R.D. 100; Jamison v. Pennsylvania Salt Manufacturing Co., D.C., 22 F.R.D. 238.

A motion for summary judgment should be denied if the pleadings, admissions, depositions, and affidavits raise any question of credibility of witnesses or weight of the evidence. Ramsouer v. Midland Valley R. Co., D.C., 44 F.Supp. 523; Fox v. Johnson & Wimsatt, Inc., 75 U.S.App.D.C. 211, 127 F.2d 729, 737; Clayton v. James B. Clow & Sons, D.C., 154 F.Supp. 108, 112.

A motion for summary judgment must be denied if the evidence is such that conflicting inferences could be drawn therefrom, or if reasonable men might reach different conclusions. Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; Winter Park Tel. Co. v. Southern Bell Tel. & Tel. Co., 5 Cir., 181 F.2d 341; Poole v. Gillison, D.C., 15 F.R.D. 194; Barron and Holtzoff, Vol. 3, Federal Practice and Procedure, § 1234, p. 135.

Appellant asserts that whether, at the time of his injury, his status was that of a company employee, prohibiting his present tort action, or an independent contractor of the company, permitting such action, constitutes a factual issue in regard to which the facts are in conflict, thus precluding a summary judgment.

Respondents, on the other hand, urge that conflict, if it exists, is not as to the facts, but as to the legal conclusions to be drawn from the undisputed facts; and that therefore the trial court properly ruled, upon the record and applicable law, that 'there is no genuine issue as to any material fact,' and that respondents were entitled to the summary judgment.

We deem to be in order a comparative analysis of the law, applicable to certain phases of this case, i. e., employer-employee and contracting principal--independent contractor relationship.

The authorities have suggested various tests for determining the relationship. No one test standing alone, except perhaps the right to control in the employer-employee relationship, and the lack of such right in that of principal and independent contractor, is wholly decisive.

In Pinson v. Minidoka Highway District, 61 Idaho 731, 737, 106 P.2d 1020, 1022, it is stated:

'The general test is the right to control and direct the activities of the employee, or the power to control the details of the work to be performed and to determine how it shall be done, and whether it shall stop or continue, that gives rise to the relationship of employer and employee.'

This general test was approved in Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884.

Inasmuch as the trial court, in granting the summary judgment, ruled in effect that the record presented no factual issue as to the existence of the employer-employee relationship between appellant and the company on the date of appellant's injury, but that such relationship was shown as existent without factual conflict, and thus, as a matter of law, we shall point to various other tests, held not to disturb the relationship of principal and independent contractor or as indicia of the existence of that relationship.

'An independent contractor * * * is one who, in the course of an independent employment, undertakes to perform work subject to the control of the person for whom the work is done only as to the result or product of the work, and not as to the means or methods used.' 99 C.J.S. Workmen's Compensation § 90, p. 311. 'The right of control by which the nature of the employment is tested is the right to control the work, the details of the work, the manner, method, or mode of doing it, the means by which it is to be accomplished, or, specifically, the details, manner, means, or method of doing the work, as contrasted with the result thereof.' 99 C.J.S. Workmen's Compensation § 92, pp. 321-323. See also Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Goble v. Boise Payette Lumber Co., 38 Idaho 525, 224 P. 439; E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Horst v. Southern Idaho Oil Co., 49 Idaho 58, 286 P. 369; Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; In re Black, 58 Idaho 803, 80 P.2d 24; Whalen v. Zinn, 60 Idaho 722, 96 P.2d 434; In re General Electric Co., 66 Idaho 91, 156 P.2d 190; Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Ohm v. J. R. Simplot Co., 70 Idaho 318, 216 P.2d 952; Wilcox v. Swing, 71 Idaho 301, 230 P.2d 995; Fitzen v. Cream Top Dairy, 73 Idaho 210, 249 P.2d 806.

The fact that the work is to be done under directions and to the satisfaction of certain persons representing the principal, do not render the person contracted with to do the work, a servant. Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; In re General Electric Co., 66 Idaho 91, 156 P.2d 190; Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Ohm v. J. R. Simplot Co., 70 Idaho 318, 216 P.2d 952.

The right of discharge is not a decisive test of the relationship of either the employer-employee relationship or that of principal and independent contractor. Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Horst v. Souther Idaho Oil Co., 49 Idaho 58, 286 P. 369; Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; In re Black, 58 Idaho 803, 80 P.2d 24.

The method of payment does not disturb the independent contractor relationship. Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Horst v. Southern Idano Oil Co., 49 Idaho 58, 286 P. 369; Nixon v. Webber-Riley Lumber Co., 71 Idaho 238, 229 P.2d 997.

The right of supervision, if retained, does not alter the independent contractor relationship. Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323.

The hiring, furnishing, controlling, discharging and paying of assistants although not conclusive of the independent contractor relationship are indicia thereof, to be considered. 99 C.J.S. Workmen's Compensation § 95, pp. 336-337.

A workman, who furnishes his own equipment, and pays his expenses, are factors to be considered in determining whether the independent contractor relationship exists. 99 C.J.S. Workmen's Compensation §§ 96-97, pp. 339-341.

A contractual relationship which involves manpower and equipment, where the contract is not divisible in the regard that the principal may rule off the job the worker and his equipment (but he cannot rule off the job the worker or his equipment, retaining one or the other), constitutes strong indicia of the relationship of principal and independent contractor; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721; Luckie v. Diamond Coal Co., 41 Cal.App. 468, 183 P. 178; Counihan v. Lufstufka Bros. & Co., 118 Cal.App. 602, 5 P.2d 694; Mountain Meadow Creameries v. Industrial Accident Commission, 25 Cal.App.2d 123, 76 P.2d 724; Clarke v. Hernandez, 79 Cal.App.2d 414, 179 P.2d 834; Stover Bedding Co. v. Industrial Commission, 99 Utah 423, 107 P.2d 1027, 134 A.L.R. 1006. Cf. Nixon v. Webber-Riley Lumber Co., 71 Idaho 238, 229 P.2d 997. Scrutiny of the pleadings, admissions, depositions and affidavits constituting the record herein reveals facts pointing to both the employer-employee...

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