Volkswagen Iowa City, Inc. v. Scott's Inc.

• Decision Date: 11 March 1969
• Docket Number: No. 53149,53149
• Citation: 165 N.W.2d 789
• Parties: VOLKSWAGEN IOWA CITY, INC., Appellee, v. SCOTT'S INCORPORATED, Appellant.
• Court: Iowa Supreme Court

Page 789

165 N.W.2d 789

VOLKSWAGEN IOWA CITY, INC., Appellee, v. SCOTT'S INCORPORATED, Appellant.

No. 53149.

Supreme Court of Iowa.

March 11, 1969.

Gene V. Kellenberger and Keyes & Crawford, Cedar Rapids, for appellant.

Shulman, Phelan, Tucker, Boyle & Mullen, Iowa City, for appellee.

GARFIELD, Chief Justice.

This is a law action by Volkswagen Iowa City, Inc., tried to the court without a jury, to recover for damage to 26 used and 13 new automobiles on its parking lot caused by paint blowing onto them during the spray-painting by defendant VeDepo of a nearby new store building of defendant Scott's Inc.

The petition alleges defendant VeDepo allowed the paint to be blown onto the automobiles and so caused the damage. It is then alleged the damage was the result of negligence of defendants, all the instrumentalities causing it were under their exclusive control, it would not have occurred except for such negligence and 'plaintiff relies upon the doctrine of res ipsa loquitur.'

The trial court held the relationship between Scott's and VeDepo was one of employer-employee based on the facts the former hired the latter to do the painting, furnished the paint, Supervised the painting and paid VeDepo for applying the paint. The court fixed plaintiff's damage at $1050 and entered judgment against both Scott's and VeDepo therefor. Scott's has appealed to us.

Appellant's two assigned errors challenge sufficiency of the evidence to support the finding an employer-employee relation existed between it and the painter VeDepo and the conclusion it is liable for his alleged negligence. We must agree with appellant.

I. Only two witnesses testified--Allen E. Greb, president and majority stockholder of plaintiff, and Charles T. Scott, vice president and stockholder of Scott's. There is very little dispute in the evidence.

Plaintiff is a dealer in new and used automobiles. Defendant Scott's new store building on adjoining property was built under contract by it with a builder from another city. The general contractor entered into a subcontract with one Rushton for construction of the roof. The building had received only one coat of cement paint and needed a finish coat. VeDepo was a painter employed by Rushton. In the spring of 1966 these two approached Charles Scott about painting the new building. After negotiations, $150 for painting the building plus $34.50 extra for painting the canopy ($184.50 in all) was agreed upon. Scott's had paint and was to furnish it for the job.

Plaintiff's witness Mr. Greb gave little if any testimony bearing on the relationship between Scott's and VeDepo or the former's liability for claimed negligence of the latter. His evidence relates mainly to the extent of plaintiff's damage.

Greb said that about May 15 'we' noticed one of our autos was speckled with paint of a different color than the car; he went to an adjacent lot where VeDepo was spray-painting and asked him if he knew the spray was hitting their cars; VeDepo said he didn't know it; it is 200 feet between plaintiff's and defendant's buildings but less than 50 feet between defendant's building and plaintiff's parking lot; the witness would say one of the Scott brothers was in and about the store during the painting; he did not talk to either of them about the paint matter.

On cross-examination Mr. Greb said when he talked to VeDepo the latter kept on painting; the witness left and did nothing further about the paint drifting onto their cars; his talk with VeDepo was when 'we just noticed the paint on our cars,' he did not ask VeDepo to stop painting as he didn't think he had that right; the witness merely brought the matter to VeDepo's attention; he did not know the Scott brothers were present any time the painting was being done as he did not see them there; the painting took more than 1 day but he doesn't know how much longer; the witness did not remember talking to either Scott brother the day he first noticed paint on their cars nor any time during the painting; he did talk to Scott but he could not say what day.

Defendant's witness Scott testified that so far as he was concerned the agreement for the painting was for nothing but a completed paint job; 'At no time did I or any of my employees supervise, instruct or in any way have anything to do with the painting job; I paid no attention to the job being done; I knew nothing about paint on plaintiff's cars until sometime after it allegedly happened;' when VeDepo completed the painting defendant received a statement for the agreed price of $184.50 which it paid.

On cross-examination Mr. Scott said he did not supervise or attend construction of the building; once he let the contract for the painting he paid no attention to it; he observed the job and inspected it after it was done; he is one of the operators of the store which was open for business at that time and he could have been there during the painting; defendant furnished the paint; it was there at the store and set out for VeDepo to use; the spraying equipment, ladders and otherwise were furnished by the contractor; it was part of the agreement the painting be done within a reasonable time and this was done; it was immaterial to the witness whether the building was spray or brush painted; VeDepo said he had spray equipment and the witness agreed it be used.

In addition to testimony of the two witnesses summarized above, plaintiff offered in evidence without objection interrogatories filed by it under rule 121, Rules of Civil Procedure, to be answered by defendants and their answers thereto. To the interrogatory directed to Scott's, 'State whether you did, through any officer, agent or employee, direct or supervise such painting,' the answer was 'This was a contract job for a completed result; there was no directing, supervising or other control exercised over contractor who did this work by any officer, agent or empoyee of this corporation.'

To the interrogatory to be answered by VeDepo, 'State whether you performed any * * * exterior painting of the aforesaid store * * * either directly or through persons directly hired by you,' the answer was 'Said painting services were performed by defendant himself. He retained one other person as his employee to assist him.'

II. These propositions are deemed so well established that authorities need not be cited in support of them: Findings of fact in a law action are binding upon us if supported by substantial evidence. In considering Scott's claim the evidence is insufficient to support the findings and conclusions we view the evidence in the light most favorable to plaintiff. Rule 344(f) 1 and 2, Rules of Civil Procedure.

It is clear the burden rested on plaintiff to prove by a preponderance of the evidence an employer-employee relationship existed between Scott's and VeDepo as the trial court found. McDonald v. Dodge, 231 Iowa 325, 329--330, 1 N.W.2d 280, 283; Schlotter v. Leudt, 255 Iowa 640, 649, 123 N.W.2d 434, 440; Reynolds v. Skelly Oil Co., 227 Iowa 163, 165, 287 N.W. 823. See also Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1213--1214, 146 N.W.2d 261, 263--264 and citations; rule 344(f) 5 and 6 R.C.P.

Plaintiff does not deny it had the burden to prove the existence of an employer-employee relationship between Scott's and VeDepo. Its first proposition relied upon for affirmance is that the evidence was sufficient to establish such relationship 'upon which the liability of Scott's Inc. could be predicated.'

III. We have repeatedly pointed out the most commonly accepted indicia of the relationship of the employer-employee, frequently in determining whether a person rendering service to another is an employee or independent contractor. Our most recent decision of this kind as this is written is Swain v. Monona County, Iowa, 163 N.W.2d 918, 921, quoting from Nelson v. Cities Service Oil Co., supra, 259 Iowa 1209, 1215, 146 N.W.2d 261, 264--265. The Nelson opinion in turn quotes from several earlier precedents, including Schlotter v. Leudt, supra, 255 Iowa 640, 643, 123 N.W.2d 434, 436--437.

The Schlotter and Nelson cases state: 'The most important consideration in determining whether a person giving service is an employee or an independent contractor is the right to control the physical conduct of the person giving service. If the right to control, the right to determine, the mode and manner of accomplishing a particular result is vested in the person giving service he is an independent contractor, if it is vested in the employer, such person is an employee.'

It may be well also to repeat from Mallinger v. Webster City Oil Co., 211 Iowa 847, 851, 234 N.W. 254, 256--257 and many later precedents, including Swain v. Monona County and Nelson v. Cities Service Oil Co., both supra, these common recognized tests of an independent contractor: '(1) The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progrss of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer.'

See also 41 Am.Jur.2d, Independent Contractors, sections 5 and 8, pages 743--746, 751--753.

IV. We can find no substantial evidence to support the trial court's findings the relationship between the two defendants was one of employer-employee or that Scott's supervised the painting.

Plaintiff thinks these matters of evidence support the findings:

(1) An owner of Scott's was on the premises 'most every day' when the painting took place.

(2) While on the premises this owner observed the painting and checked it when completed.

(3) Scott's 'r...