Smith v. Goodman

• Decision Date: 09 August 1967
• Docket Number: No. 1,CA-CIV,1
• Citation: 6 Ariz.App. 168,430 P.2d 922
• Parties: Robert SMITH, Appellant, v. Eddie GOODMAN, Appellee. 596.
• Court: Arizona Court of Appeals

Page 922

430 P.2d 922

6 Ariz.App. 168

Robert SMITH, Appellant, v. Eddie GOODMAN, Appellee.

No. 1 CA-CIV 596.

Court of Appeals of Arizona.

Aug. 9, 1967.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Lyons, Phoenix, for appellant.

Hughes & Hughes, by John C. Hughes, Phoenix, for appellee.

CAMERON, Chief Judge.

This is an appeal from a jury verdict and judgment in favor of plaintiff Goodman for personal injuries received in an accident while the plaintiff was training a horse for the defendant Smith.

Two issues are presented for review by the Court of Appeals in this case:

1. Was the plaintiff Goodman an independent contractor or was he an employee?

2. If he was an employee, was the employer guilty of actionable negligence?

The facts necessary for a determination of this matter are as follows. Smith was lessee of a farm near Glendale and owner of a large two-year-old female horse or mare which he desired to have broken or trained to ride with a saddle. The plaintiff Goodman and defendant Smith became acquainted through a mutual friend, and negotiations ensued which resulted in Goodman going from Chandler to Glendale to live temporarily at Smith's farm to break the colt to ride.

Goodman at first requested that Smith allow him to take the horse to a place which he had available in Scottsdale where he could feed and care for the horse and ride her the times necessary to gentle her to the saddle. Goodman was wary of sending the horse to Scottsdale out of his supervision and control. It was finally agreed that Smith would pay Goodman $120 to break the animal, and the training would occur at Smith's farm near Glendale. Goodman had broken and worked with horses for most of his 58 years. It appears from Goodman's testimony that Smith required more training of the horse than Goodman had expected. Goodman found he would have to ride the horse more than the customary five or six times which he felt were necessary to train the horse to be ridden with a saddle because Smith required the horse be broken gently enough so that his young daughter could ride it.

It is evident from the testimony that Smith agreed to furnish Goodman with a saddle, halter, bridle and the other equipment necessary for the training of the horse. After Goodman arrived at the farm he determined that the corrals were unsuitable for riding or training the horse. After consultation with Smith, Goodman improvised a corral by putting cotton trailers in a circle. Plaintiff set a post in the ground in the center of the corral as a snubbing post to tie the horse, and this was used as a training area for her. From the testimony, at some time during this period Smith agreed to pay Goodman $1.00 per hour to build a new corral which could be used as a training corral for breaking the horse.

The record further discloses that the horse was large for its age and broke at least two halters from around its head and neck before Smith finally obtained one which was stout enough to hold the horse when tied securely to the snubbing post. The horse at one time broke loose from Goodman and jumped the wire fence to the outside of the 7 1/2 acre enclosure into another similar enclosure belonging to Smith. Smith furnished Goodman with a 'snaffel-bit' type bridle and also a rope approximately 30 feet in length, the ends of which were attached to either side of the bridle. Goodman testified that he objected to the long rope dragging out in an enclosed loop and avers he asked permission from Smith to cut the rope. Goodman claims that Smith would not allow him to cut the rope, but he did promise to buy him another more suitable and safe one. It is disputed whether the long rope was made of more expensive nylon or of cotton as Smith claims. Smith also claims that he did not remember objecting to Goodman cutting the rope or promising that he would get him another one:

'Q And do you recall whether it was an expensive or an inexpensive rope?

'A I don't recall, it wasn't necessarily expensive I am sure it wasn't an expensive rope, as nylon rope, but--

'Q Did you have any other intended purpose for the rope other than for what Mr. Goodman wanted to use it for?

'A No.

'Q Did Mr. Goodman ever ask you to cut the rope, to your knowledge?'

'A I don't remember.'

It is disputed how much Smith knew about training horses, and it is also disputed how much control Smith exerted over Goodman in Goodman's efforts to break the horse. Goodman's testimony is that Smith wanted him to train the horse so the child could ride her, and also Smith objected to Goodman 'roughing up' the mare or allowing her to buck. Goodman claims that his method was to ride the horse and allow it to buck if it insisted. Smith reportedly objected to this method and insisted the horse be prevented from ever bucking so that she would not have the proclivity to buck later if the child got in the situation where the horse would be excited or otherwise stimulated to buck.

On the day of the accident the corral had been finished by Goodman, and it was his intention to move the mare from the cotton trailer corral to the new corral. In order to do this it was necessary to move one of the cotton trailers and make available a gate or opening through which the mare could be taken. At about 4:00 in the afternoon of the day of the accident a friend of Goodman's named Jack was on the ranch and had tied the mare to the snubbing post in the center of the cotton trailer corral. Jack thereafter went to the tractor which was hitched to one of the trailers and was in the process of moving the trailer when Goodman returned to the corral from his house. The mare became frightened by the noise of the tractor and the moving of the trailer, reared, and was able to come loose from the snubbing post because she was insecurely tied. Goodman recognized the danger that the animal would escape from the corral carrying the saddle and dragging the loop of rope behind her. He testified he was afraid the animal would become frightened and run through a barbed wire fence and seriously injure herself. Goodman grabbed hold of the loop of rope behind the horse in his efforts to stop the horse from running away. He stepped inside the loop which was dragging, and somewhere in the enclosed fields of the pasture Goodman's foot was stopped on a raised border of the land. He was thrown in the air and when he struck the ground, his leg was seriously broken and injured. Goodman lay in the field for approximately one hour before he was taken by ambulance to St. Joseph's Hospital. The testimony of the doctors is that the break was a severe one and the injuries will be permanent to Goodman.

The appellate court will review the findings of the trial court in the strongest light to support the judgment. Chantler v. Wood, 6 Ariz.App. 134, 430 P.2d 713, filed 25 July 1967, Consolidated Credit Corp. v. Laurence, 5 Ariz.App. 568, 429 P.2d 455, filed 29 June 1967. The appellate court will view the evidence of negligence in the light most favorable to the prevailing party in the trial court. Where there is conflicting evidence, the Court will not disturb the trial court's findings. Korrick v. Robinson, 20 Ariz. 323, 180 P. 446 (1919); Inter-State Fidelity Building & Loan Ass'n v. Hollis, 41 Ariz. 295, 17 P.2d 1101 (1933); Jimenez v. Starkey, 85 Ariz. 194, 335 P.2d 83 (1959); City of Phoenix v. Schroeder, 1 Ariz.App. 510, 405 P.2d 301 (1965); Powell v. Industrial Commission, 4 Ariz.App. 172, 418 P.2d 602 (1966).

Since this accident is not covered by the Workmen's Compensation Act, A.R.S. § 23--901 et seq., any recovery to the plaintiff must be on the basis of common law tort and negligence doctrines. A.R.S. § 1--201, Ross v. Bumstead, 65 Ariz. 61, 173 P.2d 765 (1946).

We must first determine whether the plaintiff is an employee of Smith or if he is an independent contractor. A statement of the rule that governs the cases where there is a question whether the injured person is an employee or an independent contractor is given in the case of Arizona Binghampton Copper Company v. Dickson, 22 Ariz. 163, 170, 195 P. 538, 540, 44 A.L.R. 881 (1921):

'The general rule is that a contractor cannot recover damages from his employer for injuries he may sustain in the performance of his contract, and it is predicated upon the fact that the contractor has control and is bound, as every principal is, to provide for his own safety and protection.'

The Supreme Court of Arizona has stated the test for determining whether an agent is an employee or an independent contractor:

'The body of law concerned with distinguishing independent contractors from employees is, indeed, huge. And though no hard and fast rule can be set forth, but instead each case must be determined by the sum total of its own facts, the general test laid down by our own statute (Sec. 56--928) and by the great weight of authority is whether the alleged employer 'retains supervision or control over the method of reaching a certain result, or whether his control is limited to the result reached, leaving the method to the other party.' (citation) In order to apply this test and so determine the extent of this 'right of control', courts look for a variety of signposts or indica none of which are in themselves conclusive but which when taken together and applied to a particular set of facts, aid in making the line to be drawn more clear. (citations).' Blasdell v. Industrial Commission, 65 Ariz. 373, 376, 181 P.2d 620, 622 (1947).

The Restatement of the Law of Agency 2d, has two sections which are helpful in determining the distinguishing between employees and independent contractors. Section 2 defines a servant. Section 220 continues the definition:

'(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control. (2) In determining...