RINGOLD, A.C.J.
The plaintiff, Curtis L. Chapman, brought this action against the defendants William and Mary Black, for personal injuries sustained in a fall from the roof of a house being constructed for the defendants. After a jury verdict in favor of the Blacks, the trial court granted Chapman's motion for judgment n.o.v. and for a new trial on issues beyond the judgment n.o.v. Thus after
Concluding that the trial court in effect made findings of fact contrary to the jury's determinations based on conflicting evidence, we reverse and direct the entry of judgment in accord with the jury's verdict dismissing the action.
The defendant's son, Hunter Black, owned and operated Mac Black Construction Company. In August 1981, Chapman was employed by Mac Black, to work on the construction of a guest house on Whidbey Island property owned by the Blacks. The house was being constructed adjacent to the existing vacation home of the elder Blacks. On August 20, 1981, Chapman was working on the roof of the guest house, lost his footing and fell to the ground, as a result of which he became a quadriplegic. This action was subsequently commenced.
Chapman alleged that his injuries resulted from the Blacks' negligence. As an affirmative defense, the Blacks asserted that under provisions of the Industrial Insurance Act, Chapman's suit was barred. On November 6, 1984, Chapman filed a motion for partial summary judgment maintaining that he was neither employed by the Blacks nor was he their co-worker; that the Blacks were a negligent third party, and thus, the act did not constitute a defense to his action. The trial court granted Chapman's motion, striking this affirmative defense.
Following a 6-week trial, the jury entered, in answer to specific interrogatories, verdicts for the defendants finding: that Mac Black was an independent contractor for Black; that the Blacks did not control or retain the right to exercise control over the work performed on the roof at the time of Chapman's injury; and that the Blacks did not give
(Citations omitted.) Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980). When there is conflicting evidence, once the jury has reached its verdict, any inquiry by the court is foreclosed, unless, as a matter of law, the court can say that there is no competent evidence or reasonable inference therefrom to support the jury's finding in favor of the nonmoving
Agency
The Blacks contend that the trial court erred in determining that on the basis of Massey v. Tube Art Display, Inc., 15 Wn.App. 782, 551 P.2d 1387 (1976), an agency relationship existed between Hunter and themselves. They argue that their case differs significantly from Massey. Chapman responds that the evidence was undisputed, and thus, the trial court was correct in determining, as a matter of law, that an agency relationship existed as to both the construction of the entire house and the work being performed on the roof at the time of the accident.
In determining whether one acting for another is an agent or an independent contractor, several factors are considered:
Hollingbery, at 80-81 (quoting Restatement (Second) of Agency § 220(2) (1958)); Massey, at 786-87; see also Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wn.App. 669, 674, 626 P.2d 30 (1981). The crucial factor is the right of control which must exist to prove agency. Hollingbery, at 81; Bloedel, at 674. The retention of the right to inspect and supervise and to insure the proper completion of the contract (here an unwritten contract) does not vitiate the independent contractor relationship. Epperly v. Seattle, 65 Wn.2d 777, 785, 399 P.2d 591 (1965). It is not necessary that all of the remaining factors be present because no single one of them is conclusive and all relate, directly or indirectly, to the crucial factor of control or right of control. Hollingbery, at 81.
If the evidence conflicts regarding the relationship between the parties at the time of the injury or if it is reasonably susceptible of more than one inference, then the question is one of fact for the jury. If the evidence is undisputed, the question is one of law and left to the court for its determination. Massey, at 785; Baxter v. Morningside, Inc., 10 Wn.App. 893, 898, 521 P.2d 946, 82 A.L.R.3d 1206 (1974).
The record contains substantial evidence from which the jury could have found either an agency or an independent contractor relationship. The ultimate facts of control and
Viewing this conflicting evidence in the light most favorable to the Blacks, the nonmoving party, the trial court erred in granting the motion for the judgment n.o.v. on the issue of agency. Despite the reliance on Massey, the court could not say, as a matter of law, that there was no competent evidence or reasonable inference therefrom to support the jury's finding that Hunter was an independent contractor. Hojem v. Kelly, supra at 145; Schorzman v. Brown, supra at 403.
Control
Chapman contends that even if an independent contractor relationship existed, the evidence is undisputed that the Blacks exercised enough control over the work being done that they had a duty to provide him with a safe place to work. The Blacks argue that the evidence on the issue of right to control conflicted and was a question of fact for the jury, which the trial court was not permitted to overturn.
Again, the evidence on this issue conflicted and the jury determined that the Blacks did not retain the right to exercise control over the project. The trial court invaded the province of the jury.
NEW TRIAL — INSTRUCTION 13
The Blacks contend that the trial court erred in granting a new trial because (1) it did not enumerate specific reasons for its order, CR 59(f); (2) it wrongly concluded that substantial justice was not done, CR 59(a)(9); and (3) it had properly refused proposed instruction 13. Chapman argues that the court's decision was a correct one because (1) there was no evidence or reasonable inference to justify the verdict, CR 59(a)(7); (2) there had been misconduct by the Blacks' attorney, CR 59(a)(2);
The court's primary reason for granting the motion for a new trial was the trial court's refusal to give Chapman's instruction 13. We find no error in the court's refusal to
Chapman argued that the trial judge erred in failing to submit the italicized portion of the instruction:
There are two answers to Chapman's contention. First, there was no substantial evidence to support an instruction relating to negligent hiring by Black. If Mac Black was negligent in the performance of the work, that alone does not support a claim of negligent hiring.
Second, no case was cited, nor has our research revealed a Washington case where an employee of an independent contractor has successfully maintained an action against
The trial judge's order granting plaintiff's motions for judgment notwithstanding the verdict and for a new trial states:
In L.B. Foster Co. v. Hurnblad, 418 F.2d 727 (9th Cir.
Nor does Restatement (Second) of Torts § 411 suggest that Mr. Chapman may sue the Blacks for alleged negligent hiring. In each illustration in the comments to § 411, the liability extends not to the employee of the independent contractor, but to innocent passersby. Restatement, comments a-c and illustrations therein.
The trial judge properly refused plaintiff's proposed instruction 13 and erred in ordering a new trial based in part on his refusal to give that instruction.
We reverse and remand with directions to dismiss Chapman's claim.
COLEMAN and GROSSE, JJ., concur.
Review denied by Supreme Court October 6, 1987.
FootNotes
"All of these directions and specifications as to the manner and means of performing the work were made during the progress of the work. The defendants directed as the work progressed the manner and means by which the roof was to be built. These facts are wholly inconsistent with Mac Black being an independent contractor and lead to only one conclusion: that Mac Black was an agent of defendants.
"The evidence established that neither Hunter Black nor the defendants knew the exact nature of the relationship between Mac Black Construction Company and the defendants, but the facts were inconsistent with an independent contractor relationship and established an agency relationship. Robbins v. Wilson Creek State Bank, 5 Wn.2d 584, 105 P.2d 1107 (1940).
"The special relationship of father and son between defendant William Black and Hunter Black also established control by the defendants over the work. William Black testified that he could not conceive of Hunter Black doing anything other than complying with his wishes and directions. The court closely observed the demeanor of both William Black and Hunter Black during trial and their interaction in the courtroom. William Black is a commanding and controlling person. His forceful voice and his posture conveyed a man with a "take charge" personality who was in control of himself and others. He expressed his controlling personality in his posture while sitting and testifying from the stand.
"In contrast, Hunter Black's demeanor exemplified a person who is timid and uncertain of himself. His quiet voice and almost stumbling speech was not that of a person who would defy his father. The interaction between defendant William Black and Hunter Black in the courtroom supported the message conveyed by these two witnesses' demeanor individually on the stand: William Black was in total control of the father/son relationship with Hunter Black. He controlled Hunter Black's actions as he desired.
"These facts concerning the demeanor and interaction of William Black and Hunter Black are not of record. They are, however, important to support the court's conclusion that there was no evidence or reasonable inference from the evidence to support the jury's verdict. The manner that both William Black and Hunter Black used in testifying from the stand conveyed as much or more as the words they used. William Black was in control of his son and in control of the work performed on the house."
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