People v. Interstate Engineering and Construction Company

• Decision Date: 17 December 1937
• Docket Number: 6477
• Citation: 58 Idaho 457,75 P.2d 997
• Parties: THE PEOPLE OF THE STATE OF IDAHO, on the Relation of OSCAR A. HEARTBURG and ROY L. TRIPLETT, Suing for the Use and Benefit of Themselves, Respondents, v. INTERSTATE ENGINEERING AND CONSTRUCTION COMPANY, a Corporation; and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Appellants, and ROY L. TRIPLETT, Separate Appellant, v. INTERSTATE ENGINEERING AND CONSTRUCTION COMPANY, a Corporation; and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Separate Respondents
• Court: Idaho Supreme Court

75 P.2d 997

58 Idaho 457

THE PEOPLE OF THE STATE OF IDAHO, on the Relation of OSCAR A. HEARTBURG and ROY L. TRIPLETT, Suing for the Use and Benefit of Themselves, Respondents, v. INTERSTATE ENGINEERING AND CONSTRUCTION COMPANY, a Corporation; and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Appellants, and ROY L. TRIPLETT, Separate Appellant, v. INTERSTATE ENGINEERING AND CONSTRUCTION COMPANY, a Corporation; and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Separate Respondents

No. 6477

Supreme Court of Idaho

December 17, 1937

CONTRACTS-INTENT OF PARTIES-MASTER AND SERVANT-EXISTENCE OF RELATIONSHIP-EVIDENCE-APPEAL-SCOPE OF REVIEW.

1. Where an agreement is so vague and indefinite that it is impossible to collect full intent of parties, agreement is void, since neither court nor jury can make an agreement for the parties.

2. Course of dealing between construction company and individual, who was seeking to recover wages as a foreman in timber cutting operations, disclosed more a relation of subcontractor rather than master and servant, where individual had complete control over men employed by him and manner in which work was done, and where he was paid for timber at so much a foot.

3. In action against construction company for wages in timber cutting operations, plaintiff's evidence was insufficient to overthrow the finding that he was not engaged or employed as foreman, superintendent, or laborer, and the conclusion that he was not entitled to recover any wages because he had already been paid in full in accordance with contract with company.

4. Supreme court would not pass on propriety or responsiveness of trial court's finding that plaintiff was a subcontractor and therefore not entitled to recover, though neither party had so contended, where findings negativing any recovery were sustained by the evidence.

5. Where plaintiff did not appeal from portion of judgment denying him statutory penalty for nonprompt payment of wages by construction company, supreme court, on appeal by construction company from judgment for plaintiff for wages would not consider action of trial court in denying penalty (I. C. A., secs. 44-401, 44-606).

6. In action against construction company for wages for operating tractor furnished by plaintiff, evidence was sufficient to support finding that plaintiff and his tractor had been specially hired in the first instance either by manager of construction company or by another acting for company, and that employment was in effect later ratified by manager so as to render company liable.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.

Action for wages and statutory penalty for nonprompt payment and cross-action for overpayment to Triplett. Judgment for Heartburg against appellant Company, and appellant Company against Triplett. Affirmed.

Affirmed.

Carl H Swanstrom, for Appellants.

In construing executory contracts the primary function of the court is to determine the true intent of the parties, as expressed by the contract itself, and in case of latent or patent ambiguities, from the subsequent acts and conduct of the parties with respect to the contract. It is never the province of the court to make a contract for the parties or to base its construction on mere speculation or conjecture. (Corpus Juris, vol. 13, p. 525, secs. 485, 486; Sorenson v. Larue, 43 Idaho 292, 252 P. 494; Weed v. Idaho Copper Co., 51 Idaho 737, 10 P.2d 613; Cannon v Selmser, 85 Cal.App. 783, 260 P. 332; Glover v. Spraker, 50 Idaho 16, 292 P. 613.)

Where the issues of an action are sharply defined by the pleadings and the case tried on such issues, it is error for the court to make findings of fact on independent matters not in issue, or to base its judgment on such independent grounds. The judgment must be responsive to the issues as pleaded and developed in the case. (Corpus Juris, vol. 33, pp. 1139-1143, sec. 87; I. C. A., sec. 5-903; Snoderly v. Bower, 30 Idaho 484, 166 P. 265; Angel v. Mellen, 48 Idaho 750, 285 P. 461; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784; Rayborn v. Salmon River Canal Co., Ltd., 50 Idaho 297, 295 P. 1001.)

The purpose of pleadings in civil actions is to define the issues and form the foundation of the proof to be submitted on trial by advising the adverse party what is relied on as a cause of action or a defense, so that he may be prepared on the trial to meet the issues so raised. The issues, as made by the pleadings, and not as developed by evidence, are controlling on the court in the determination of the case. (I. C. A., sec. 5-601; Corpus Juris, vol. 33, pp. 31, 117, 120, 827, sec. 20 F; Provident Nat. Bank v. Webb, 60 Tex. Civ. App. 321, 128 S.W. 426.)

Wilbur L. Campbell, for Respondents and Separate Appellant.

The relationship of master and servant is contractual and must be established with the same certainty as other contracts. The same degree of proof is required to establish implied contracts of employment as express contracts and proof of an implied contract will not support complaint alleging express contract of direct employment. (39 Corpus Juris, p. 41, sec. 15, p. 197, sec. 275, p. 196, sec. 273; Corpus Juris, vol. 13, p. 748, sec. 908, p. 756, secs. 927, 928; National Surety Co. v. Board of Education, 36 Okla. 569, 129 P. 25.)

Test of whether relationship is that of master and servant is in the control of the worker by alleged employer. Control relating to the means and manner by which the work shall be accomplished is usually indicative of the relationship but if the control relates only to the ultimate result to be accomplished, it is not, in itself, evidence of employment. (Rathbun v. Payne, 21 Cal.App.2d 49, 68 P.2d 291; Arnett v. Hayes Wheel Co., 201 Mich. 67, 166 N.W. 957, 959; Independence Indemnity Co. v. Industrial Acc. Com., 203 Cal. 51, 262 P. 757; Moody v. Industrial Acc. Com., 204 Cal. 668, 269 P. 542, 60 A. L. R. 299.)

"If an agreement be so vague and indefinite that it is not possible to collect the full intent of the parties, it is void; for neither the Court nor the Jury can make an agreement for the parties." (Price v. Stipek, 39 Mont. 426, 104 P. 195; Schwab v. McVey, 54 Mont. 422, 171 P. 277; United Press v. New York Press Co., 164 N.Y. 406, 58 N.E. 527, 53 L. R. A. 288; 1 Paige on Contracts, sec. 95; 6 R. C. L., sec. 59.)

The Interstate Construction Company rejected the theory that Roy Triplett was acting as a subcontractor, or independent contractor, and there being no agreement or elements of an agreement to establish a sale, the relation could only be that of master and servant. (39 C. J., sec. 7, p. 37; Uniform Sales Act, I. C.; sec. 62-104, subd. 2, I. C. A.)

Where the employer retains control over the means and method by which the work of a contractor is to be done, the relation is one of master and servant. (39 C. J., sec. 8, p. 37; Barclay v. Puget Sound Lumber Co., 48 Wash. 241, 93 P. 430, 16 L. R. A., N. S., 140; Nyback v. Champagne Lumber Co., 109 F. 732, 48 C. C. A. 632; Harvey v. Corbett, 77 Ore. 51, 150 P. 263.)

Where an independent contractor is created or is operating as a subterfuge, an employee will be regarded as the servant of the principal employer. (39 C. J., sec. 8, p. 37; Nicholson v. Atchison T. & S. F. Ry. Co., 95 Kan. 13, 147 P. 1123, L. R. A. 1915E, 417.)

GIVENS, J. Morgan, C. J., and Holden, Ailshie, and Budge, JJ., concur.

OPINION

GIVENS, J.

Appellant Interstate Engineering & Construction Company constructed a bridge across Salmon River on U.S.P. W.H.P. No. H.R.H. 9-1 (1935) and in connection therewith appellant and respondent Triplett cut, and respondent Heartburg furnished a tractor and driver for skidding, logs used in the false work on the bridge.

The company appealed from the portion of the judgment adverse to it in favor of Heartburg, and Triplett from the portion against him in favor of the company. For clarity and brevity we will refer to the company as appellants in both appeals and to Triplett and Heartburg simply by name.

Triplett contends he was employed as foreman at $ 15 per day and that on that basis there is due him $ 377.60, and under sec. 44-606, I. C. A., a penalty of $ 192. Heartburg claimed he was to receive $ 20 a day for his tractor, driver, oil and gas, and filed a lien on the logs delivered to protect his claim of $ 446.65 and penalty of $ 600 under secs. 44-401 and 44-606, I. C. A. et seq., making a total of $ 1046.65.

Appellant defendant against both causes of action on the assertion that Triplett was to receive, and the court found in accordance with appellant's contention--

". . . . 7 cents per foot for round timbers, with 10 to 12 inch tops; 4 cents for those with 5 to 9 inch tops; for shorter lengths up to 60 feet, and for lengths up to 70 feet with 10 inch tops 8 cents; and for lengths up to 80 feet with 10 inch tops 9 cents; and for lengths up to 90 feet with 10 inch tops 10 cents; and for timbers 30 feet in length with 14 inch tops, 10 cents; . . . . the 4 cents (being) changed to five cents, all computations to be on the basis of lineal feet, . . . ." voluntarily increased 50 per cent by appellant after the work started because Triplett complained he could not perform for the above amount; and that Triplett was overpaid on this basis $ 114.28.

The court found appellant did not hire or employ respondent Triplett as foreman or superintendent but that he was a sub-contractor. Appellant Triplett in his appeal ingeniously argues he could not have legally been a sub-contractor because the main contract between respondent company and the state provided in part as noted below:

"If any bidder shall state in his proposal the particular item or items of work which he proposes...