Myers v. Rollette

• Decision Date: 29 June 1967
• Docket Number: CA-CIV
• Citation: 429 P.2d 677,6 Ariz.App. 43
• Parties: Charles A. MYERS and Evelyn M. Myers, husband and wife, Appellants, v. Robert C. ROLLETTE, Appellee. 1261.
• Court: Arizona Court of Appeals

Page 677

429 P.2d 677

6 Ariz.App. 43

Charles A. MYERS and Evelyn M. Myers, husband and wife, Appellants, v. Robert C. ROLLETTE, Appellee.

1 CA-CIV 261.

Court of Appeals of Arizona.

June 29, 1967.

Rehearing Denied July 31, 1967.

Review Granted Oct. 3, 1967.

Elsing & Crable, by W. T. Elising and F. R. Crable, Phoenix, for appellants

Carson, Messinger, Elliott, Laughlin & Ragan, by Richard H. Elliott and Robert W. Holland, Phoenix, for appellee.

STEVENS, Judge.

Robert C. Rollette filed an action in the Superior Court seeking damages from Mr. and Mrs. Charles A. Myers. The Rollette claim was based upon personal injuries he sustained while he was an employee in a hazardous occupation. The plaintiff urged the applicability of Arizona's Employers' Liability Law, A.R.S. Section 23--801 to Section 23--808. A judgment was entered in favor of Rollette and Mr. and Mrs. Myers appealed. Since the matter of the Rollette-Myers relationship was one concerning which Mrs. Myers had little personal first-hand knowledge, we will hereinafter refer to Mr. Myers as Myers or as the defendant.

In his answer Myers denied that the occupation was hazardous. His opening statement The court instructed the jury that as a matter of law Rollette was an employee. This is urged to have been error as is the trial court's refusal to give a defendant's instruction which would have permitted the jury to decide the fact of the nature of the Rollette-Myers relationship.

to the jury admitted that it was a hazardous occupation and no issue arises in connection with this appeal to controvert that at the time of his injury, Rollette was engaged in a hazardous occupation. Myers' main defenses were: that Rollette was a partner and not an employee; that Rollette's conduct was negligent, his negligence being the sole proximate cause of his injuries; and that when Myers suggested that he (Myers) secure insurance, Rollette advised him against doing so stating that he (Rollette) was insured and that in reliance thereon Myers did not secure insurance thereby placing Rollette in the position that he was estopped to urge his claim. The matter of Rollette's negligence was the subject of proper instructions and this issue was resolved by the jury against Myers.

The trial court sustained the Rollette position that the defense of estoppel was not available to Myers. In so ruling, the trial court refused to permit this portion of the answer to be read to the jury and after the defendant's offer of proof, rejected the offer. These actions are urged to have been error.

Myers also urges error in several of the facets of the issue of damages.

Rollette was injured on 22 March 1961 at which time he was 41 years of age. The trial commenced on 12 April 1965 resulting in a jury verdict of $130,000. The motion for new trial was denied upon condition that a remittitur be filed in the sum of $50,625. The remittitur was filed and the judgment before us for review was entered in the sum of $79,375.

While still a youth, Rollette became an active operator of machinery. He became an expert heavy equipment operator. During his World War II overseas assignment with the Sea Bees, he operated various types of heavy equipment. After his discharge from the service he owned and drove trucks in an interstate operation. He also became, and at the time of the trial he was, in conjunction with his brothers, a part-owner of a Wisconsin business known as the Strasberg Lumber and Fuel Company, hereinafter called Strasberg. At the time of the trial he was also a part-owner and the principal operator of the Leisure Lawn Product Company, hereinafter called Leisure Lawn. The product produced by Leisure Lawn was an artificially colored fine rock used in residential yards in place of the conventional grass lawn.

In late 1960, Rollette left his Wisconsin home in a Strasberg owned automobile coming West to secure outdoor employment. Prior to this time he had known Myers and had worked for him. When Rollette reached Phoenix he contacted Myers who at the time was interested in acquiring an unpatented mining claim containing granite in place. Myers' plan was to blast the granite free from its native state, crush it into salable gravel and market the product. Rollette was experienced in all phases of this type of operation. The early Rollette-Myers conversations were to the effect that they would acquire the mining claim together with the necessary machinery and operate the venture all on a 50-50 basis. There was a time interval between the first conversations and the final arrangements. Rollette successfully urged that the final arrangements created an employer-employee relationship with Rollette being the employee. Myers urged in the trial court and urges here, that at most that evidence disclosed a disputed question of fact and that the trial court erred when the issue was resolved in favor of Rollette as a matter of law without submitting the issue to the jury for its determination.

THE RELATIONSHIP

The relationship between the parties was resolved as an instructed verdict against the defendant and we agree with him Rollette and Myers jointly inspected the unpatented mining claim. Rollette drew the agreement of purchase. Myers was the purchaser, Rollette signing as a witness. Myers paid the down-payment and assumed the obligation for the balance of the purchase price.

that we must view this phase of the case most strongly in favor of his position. Casey v. Beaudry Motor Company, 83 Ariz. 6, 315 P.2d 662 (1957); Campbell v. Brinson, 89 Ariz. 197, 360 P.2d 211 (1961). On the other hand, if the evidence is of that quality that reasonable men could not differ as to its interpretation, then the action of the trial court was correct. Casey; Stearman v. Miranda, 97 Ariz. 55, 396 P.2d 622 (1964). There is no dispute in relation to some of the facts:

The same general procedure was followed in connection with the initial purchase of machinery. Both men were active in the rehabilitation of the machinery and in the early phases of the operation of the property. Myers paid for all necessary replacement parts. At times Rollette purchased parts from his own resources and, for these purchases, he was reimbursed by Myers.

It was contemplated that after the venture became operative Myers would be absent for periods of time with Rollette in charge of the production of gravel. Myers was to have the responsibility of marketing the gravel.

While Rollette was in the hospital following the injury, Myers, without consulting Rollette, decided to shut down the operation. Certain payments were made by Myers to Rollette and, in order to enable Rollette to prepare his income tax returns, Myers issued the required W--2 income tax forms which were consistent with the employer-employee relationship and inconsistent with a partnership relationship. No partnership income tax returns were filed. Myers paid out of his funds any wages which were paid to workmen other than Rollette and these were few in number. Myers' personal funds were the source of his payment to Rollette. There was no partnership bank account and Rollette had no authority to write checks on Myers' account. Myers did not maintain a business account separate from his own personal account. Myers stated that had there been profits from the operation, the profits would have been his and that any losses were to be borne by him. These facts are not disputed.

Rollette testified that Myers employed him after the abandonment of the 50-50 tentative agreement, the employment being on the basis of $110 a week plus 10cents a ton for the granite crushed and sold. Rollette calculated that on this basis, by working long hours, he could earn up to $18,000 a year.

Myers testified that after the 50-50 plan had been abandoned and before work commenced at the unpatented mining claim:

'A I think I told Mr. Rollette that as long as I had bought the equipment, that I would just as soon own it; that instead of working 50-50, I would give him a working interest in it. He could work it by the ton and until repair work was done, I would give him $110 a week.

'A I considered him as working partner.

'Q A working partner? That's just like a partnership, for instance, we might have in the practice of law; is that right? Regular partnership?

'A I would imagine so.

'Q Well, didn't you tell me that you were not really his employer but that he was actually your partner?

'A That's what I considered him.'

Where the rights of third parties are not involved, the matter of presence or absence of a partnership depends upon the facts and circumstances of each individual case and the intention of the parties. Tripp We agree with the trial court that in the face of the record reasonable men could not differ and that the evidence established an employer-employee relationship.

v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949); Nichols v. Elkins, 2 Ariz.App. 272, 408 P.2d 34 (1965). Payment for services rendered may be on a piece work or per ton basis without creating a partnership. A.R.S. Section 29--207(4)(b); S. A. Gerrard Company v. Cannon, 43 Ariz. 14, 28 P.2d 1016 (1934).

ESTOPPEL

Paragraph 9 of the answer to the complaint alleged in substance that, prior to the commencement of work, Myers undertook to secure Workmen's Compensation and that he was informed by Rollette that this was not needed as he (Rollette) already carried insurance against loss by accident. Myers alleged that he relied on this statement by Rollette and, therefore, did not secure Workmen's Compensation coverage. Myers based his defense of estoppel upon these allegations. The trial court ruled that this paragraph of the answer could not be read to the jury.

After the close of the plaintiff's case and prior to the presentation of evidence on behalf of the defendant, an offer of proof was made relative to this issue. Myers testified in support of the offer of proof and his testimony is summarized as follows:

A week or two...