Opinion
Oct. 1, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 895
Criswell & Patterson, John A. Criswell, Branney & Griffith, Joseph J. Branney, Englewood, for plaintiff-appellee.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendant-appellant.
KELLY, Judge.
This is an appeal by defendant Jones and Hezlep Contractors, Inc., from a judgment for plaintiff Harris in the amount of $48,044 entered after a bifurcated trial to separate juries of the issues of liability and damages. Jones and Hezlep contends there was insufficient evidence to warrant submission of the liability issues to the jury. We disagree and therefore affirm.
Plaintiff Harris brought this action to recover for personal injuries which resulted from a collision between his automobile and a road grader belonging to defendant Craig Bybee. At the time of the accident, Bybee was driving the grader to a site at which Jones and Hezlep was repaving sewer trenches under a contract with the City of Littleton. Bybee has not appealed the judgment against him and the question of his negligent operation of the road grader is not before this court.
Plaintiff's complaint against Jones and Hezlep alleged, among other things, that Bybee was an employee of Jones and Hezlep acting within the scope of his employment at the time of the collision. At the close of plaintiff's case, Jones and Hezlep moved for a directed verdict on the ground that the evidence was insufficient to establish an employer-employee relationship. The motion was denied and the case was submitted to the jury in the form of a special verdict requiring answers to eight separate questions of fact. The jury found that Bybee was an employee of Jones and Hezlep.
The standards for evaluating motions for a directed verdict are well-established in Colorado. The trial court must view the evidence in the light most favorable to the party against whom the motion is directed and apply every reasonable inference of fact that can be legitimately drawn therefrom in that party's favor. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391; Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93. Such motions may then be granted only where the evidence, so considered, is such that no reasonable person could decide the issues against the moving party. McGlasson v. Barger, 163 colo. 438, 431 P.2d 778; Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964. It is only in the clearest case, where the facts are undisputed and it is plain that all intelligent persons can draw but one inference from the evidence, that the motion should be granted. Blount v. Romero, 157 Colo. 130, 401 P.2d 611. Applying these standards to the case before us, it is manifest that the trial court's ruling was correct.
The test for determining whether services are performed as an employee or as an independent contractor is: Does the employer retain or have the right of control over the person employed as to all details of the work or does the right of control over such details rest solely with the person engaged? Dumont v. Teets, 128 Colo. 395, 262 P.2d 734. All of the facts surrounding the employment must be considered in making this determination, Arnold v. Lawrence, 72 Colo. 528, 213 P. 129, and where there are conflicting facts from which jurors might draw differing inferences, the issue is properly submitted to the jury.
In early 1970, the City of Littleton entered into a written contract with Jones and Hezlep for the excavation of trenches in public streets, laying sewer lines, filling the trenches and repaving the streets. The contract required that Jones and Hezlep take whatever action was reasonably necessary to protect the safety of the public. It also prohibited subcontracting any portion of the work unless there was a request by the contractor showing that the organization to perform the work 'is particularly experienced and equipped for such work', and unless the city gave its written consent. All equipment used in executing the work was to be provided by the contractor. The entire contract was attached to plaintiff's complaint and was admitted in evidence prior to trial as a defense exhibit.
Although this agreement was executed in June of 1970, Bybee was not hired until October to repave the sewer trenches at the job site. Jones and Hezlep did not request the City's permission to employ Bybee as a subcontractor and did not submit any supporting documents showing his qualifications.
Despite the fact that Jones and Hezlep had its own road grader at the job site, and despite the clear provisions of the contract that it was to provide all the equipment for the job, Jones and Hezlep requested Bybee to provide his own road grader so that the Jones and Hezlep grader could be moved to another location.
Bybee's road grader was 16 years old, unlicensed and in poor condition. Bybee nevertheless undertook to have it put in condition for use on the Littleton job site as requested by Jones and Hezlep. The accident with plaintiff Harris occurred while Bybee was driving his grader from the repair station to the job site.
It is not clear from the record whether it was Bybee's inferior workmanship, the inadequacy of his equipment, or pressure to complete the work before winter that occasioned the close supervision given to Bybee's work by Jones and Hezlep's construction superintendent. Bybee testified that Jones and Hezlep's men were in complete control of the job, which was not contradicted by Jones and Hezlep's officials. Its construction superintendent said that he considered all the people on the job, including Bybee and his workers, as one group under the control of Jones and Hezlep for the purpose of getting the job done. He told Bybee and his men where to dig ditches, where to put excess materials, how the materials were to be loaded and what he wanted accomplished on the job each day.
Nor was this the only evidence from which the jury might reasonably have inferred that Bybee was an employee of Jones and Hezlep and not an independent contractor. The record shows that Bybee was not provided with a copy of the contract between Jones and Hezlep and the City of Littleton--a customary procedure in hiring a subcontractor--and that Bybee's performance of the work was not based on the contract requirements. Jones and Hezlep supplied some of the material, some of the labor, and some of the equipment in order to get the work done and Bybee and his men were paid on a time and material basis.
We conclude that there was sufficient evidence to warrant submission of this issue to the jury and that the trial court properly denied Jones and Hezlep's motion for directed verdict. In view of this conclusion, it is unnecessary for us to address Jones and Ehzlep's contention that there was insufficient evidence to submit the question of negligent hiring to the jury.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.