Walton v. Texasgulf, Inc.

• Decision Date: 09 October 1981
• Citation: Walton v. Texasgulf, Inc., 634 P.2d 908 (Wyo. 1981)
• Parties: Donald C. WALTON, Appellant (Plaintiff), v. TEXASGULF, INC., a Texas Corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 908

634 P.2d 908

Donald C. WALTON, Appellant (Plaintiff), v. TEXASGULF, INC., a Texas Corporation, Appellee (Defendant).

Supreme Court of Wyoming.

Oct. 9, 1981.

Robert C. Wilson, Douglas, for appellant.

R. Patrick Dixon of Murne & Bostwick, Casper, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

This appeal arose from a jury verdict upon which judgment was entered in favor of the appellee on August 15, 1980. The appellant, Donald Walton, filed a motion for new trial pursuant to Rule 59, W.R.C.P., and the motion was denied by the trial court. From this order of denial the appellant raises the following issues for our consideration:

1. Did the trial court abuse its discretion in failing to grant appellant's motion for new trial on the grounds that misleading and confusing instructions were submitted to the jury?

2. Did the trial court abuse its discretion in failing to grant appellant's motion for new trial on the basis of newly discovered evidence?

3. Was reversible error committed as a result of the refusal by the trial court to allow the appellant to question a witness concerning worker's compensation after appellee had been given the opportunity to do so?

We will affirm the lower court's entry of judgment upon the jury's verdict and denial of appellant's motion for new trial.

FACTS

Appellant Donald Walton's claim arose out of an injury he received April 27, 1976, while working as an electrician at a soda ash plant construction site, at which time he was in the employ of Brown and Root, a Houston-based contractor. The injury occurred as a result of a fall occasioned by reason of the fact that an unknown person removed several of the bottom rungs of a ladder which Mr. Walton was descending.

The appellant brought his action against Texasgulf, the owner of the plant, alleging that his injuries came on as a result of negligence on the part of Brown and Root and that Texasgulf was liable under the doctrine of respondeat superior. The case was tried before a 12-person jury which rendered a verdict in favor of Texasgulf. Specifically the jury found that Brown and Root was not the agent of Texasgulf, that Texasgulf was not negligent, and that, while Brown and Root was negligent, its negligence did not contribute to the injuries received by appellant. The sole blame for the incident was attributed to persons unknown.

STANDARD OF REVIEW FOR NEW-TRIAL MOTION

It is well settled that trial courts are vested with broad discretion when ruling upon a party's motion for new trial. ¹ Wright & Miller, Federal Practice and Procedure: Civil § 2803 at 33 (1973). It follows that review of a trial court's decision on the issue of granting or denying a motion for new trial is limited to abuse-of-discretion considerations. We said in Brasel and Sims Construction Co. v. Neuman Transit Co., Wyo., 378 P.2d 501, 503 (1963):

" 'Trial courts have always been clothed with a large discretion in the matter of granting a new trial, and their action will not be disturbed in the appellate court unless that court can clearly and conclusively say that there was an abuse of that discretion. * * * ' " (Quoting from Elliott v. Sloan, 38 Wyo. 276, 266 P. 1059, 1061 (1928).)

This rule has also been followed in other cases addressed by this court. John B. Roden, Jr., Inc. v. Davis, Wyo., 460 P.2d 209 (1969); Opie v. State, Wyo., 422 P.2d 84 (1967).

Since the appellant in this case has raised issues surrounding the denial of his motion for new trial, we will address each of the claims of error separately, while keeping in mind the above standard for review.

MISLEADING JURY INSTRUCTIONS

The trial of this case involved a question for the jury on the issue of whether or not the firm of Brown and Root was the agent of Texasgulf, or whether it was an independent contractor. With respect to this issue, appellant argues that the instructions given were misleading and had the effect of confusing the jury to the extent that he was denied a fair resolution of that issue.

The jury was instructed by the trial court as follows:

"Plaintiff has alleged that Brown & Root was the agent and employee of Texasgulf, and that Texasgulf is therefore responsible for the actions of Brown & Root as its agent and employee. Texasgulf has denied the relationship of agent and employee, and has alleged that Brown & Root was an independent contractor, and that neither is responsible for any negligence of the other.

"Although an agent and an independent contractor work for another person or corporation, there is an important difference between them.

"One is the agent of its employer if it is authorized to act for or in place of that employer, and is subject to the right of that employer to control its actions.

"An independent contractor is one who, in rendering services, contracts to do a piece of work according to its own methods without being subject to the control of the employer except as to the results of the work.

"Whether one is an agent or independent contractor depends on who has the right to general and immediate control over the mode or manner in which the work is done. If the one who performs the work has the right to such general and immediate control, it is an independent contractor. If the employer has that right, it is the principal and the other is its agent.

"An independent contractor may consider and follow any suggestions that its employer may make, and the employer may make any suggestions or requests it wishes, and retain for itself a broad, general power of supervision as to the results of the work, but these things do not change an independent contractor into an agent so long as it retains the right of control over the methods to be used to accomplish the end result. An employer of an independent contractor is ordinarily not liable to others for the negligence of the independent contractor.

"Therefore, if you find that Brown & Root was an independent contractor, its negligence, if any, may not be attributed to anyone but itself, and Texasgulf may not be held responsible to Plaintiff for any negligence of Brown & Root as independent contractor.

"However, if you find that Brown & Root was acting as the agent for Texasgulf in the relationships hereinabove set forth, and was negligent and acting within the scope of its employment, all at the time of the actions complained of, its negligence must also be regarded as the negligence of Texasgulf. Conversely, if you find that Brown & Root was not the agent for Texasgulf in the relationships set forth above, or was not acting within the scope of its employment, even though negligent, all at the time of the actions complained of, its negligence may not be attributed to anyone but itself, and no one else but Brown & Root may be held responsible to Plaintiff for any of that negligence." Instruction No. 6.

After the case was given to the jury for resolution of the various issues, the trial court gave a supplemental instruction. This instruction read:

"Article XVI of the Contract purports to establish Brown & Root as an independent contractor. However, while that is evidence which you must consider, you must also consider whether or not the actions of the parties changed that Article to the extent that an employer-agent relationship resulted. In doing this you must take into account all other provisions of the contract, the evidence presented and all other instructions given you by the Court."

Appellant Walton argues that these instructions show that the jury was misled as to the factors comprising an agency-independent-contractor relationship. Mr. Walton also urges that his proposed instructions "A" and "B" correctly state the law and that it was an abuse of discretion for the trial court to refuse to give them. These offered instructions read:

"INSTRUCTION NO. A

"The term Employer and Employee refers to the relationship which exists when one person, employer, employs another, Employee, to do certain work. In determining whether the relationship exists, you should consider whether the relationship exists, you should consider whether TexasGulf, Inc. selected or employed Brown and Root; whether wages or other consideration were to be paid; whether TexasGulf, Inc. had the power or right to dismiss and the right to control Brown and Root, the central element is the right to control the details of performance. It matters not whether TexasGulf, Inc. actually exercised any right to control Brown and Root he may have had."

"INSTRUCTION NO. B

"An independent contractor is one who contracts with another to accomplish a result using his own, rather than the other's, methods with respect to the physical conduct involved in the performance of the work, and, except as to the result of the work, is not subject to the control of the person who engaged him.

"In determining whether Brown and Root was an independent contractor or an employee, the consideration is whether or not TexasGulf, Inc. engaging Brown and Root, in addition to having the right to control the manner in which the work was to be performed. You may consider the terms of the contract between the parties; the nature of the business or occupation of the parties; which party furnished the instrumentality or the tools for the work; the length of time of the engagement; the method of payment; the right, if any, of TexasGulf to summarily discharge Brown and Root; the extent to which TexasGulf exercised supervision of the work, if any; and any and all of the surrounding circumstances that tend to characterize the relationship."

On numerous occasions we have discussed the elements that must be considered by juries faced with the resolution and identification of agency-independent-partnership questions. In Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1042 (1978), we said:

" * * * The overriding consideration in determining whether one is an employee or an independent contractor...