No. 14217 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1379 

ALLAN J. KOSMERL, d/b/a 

AL IS ELECTRIC, 

Plaintiff and Appellant, 

TIMOTHY C. BARBOUR and JAMES E. 

NELSON, d/b/a T.J.'S POOL AND 

GAME ROOM, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Truman Bradford, Judge presiding. 

Counsel of Record: 

For Appellant: 

Graybill, Ostrem, Warner and Crotty, Great Falls, 

Montana 

For Respondent : 

Alexander, Kuenning, Miller and Ugrin, Great Falls, 

Montana 

Submitted on briefs: December 20, 1978 

~ecidedfAN 2 lgfg 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment on a case tried in 

the Eighth Judicial District Court, Cascade County, the 

Honorable Truman G. Bradford, sitting without a jury. 

Plaintiff sued on a contract for certain electrical work 

done on premises belonging to respondents in the amount of 

$1,761.25. From a judgment in favor of defendant-respondents, 

plaintiff appeals. 

Respondents Barbour and Nelson formed a partnership and 

leased a building to house a business called TJ's Pool & 

Game Room. They employed a contractor, Gordon Sayler, to 

undertake remodeling necessary to transform the leased 

premises into space suitable for a billiard and game room 

business. Sayler was a general contractor who had done this 

type of work in several other establishments in Great Falls. 

During his remodeling jobs, he hires labor and subcontractors to assist him in the necessary alterations. Appellant, 

Allan J. Kosmerl, doing business as Al's Electric, was hired 

by Sayler to do the electrical work at TJ's. Testimony 

indicated that Sayler had previously worked with Al's Electric in other remodeling jobs and that their way of doing 

business was that Sayler would pay Al's at the completion of 

the electrical job. 

During the course of remodeling Barbour, who managed 

the business, learned that Sayler,was not making payment to 

his employees or subcontractors. Some of these employees 

threatened to walk off the job and some of the subcontractors went directly to Barbour and requested that he make 

payments to them. Arrangements were made to finish the job 

under this sort of a fiscal arrangement. Up to that time 
Barbour had paid directly to Sayler a portion of the contract price. Thereafter, after talking to Sayler, Barbour 

made payments directly to certain individuals. Sayler 

stayed on the job until completion, the fiscal arrangements 

being made as above set forth with certain of the employees 

and subcontractors. 

Appellant contends that, after talking to Barbour, he 

felt that Sayler would pay him. However, he also felt that 

under the arrangements Barbour had made to take over the 

job, that he would be included as other subcontractors were 

and be paid by Barbour. Barbour, on the other hand, testified and took the position that although he paid many of the 

subcontractors in full, appellant had agreed to look only to 

Sayler for payment. As a result, he did not feel responsible 

for work done by appellant. 

Additionally, one month after the completion of all the 

work and nearly two and one-half months after appellant 

stated that he understood he would look to Barbour for 

payment, appellant submitted a bill to Sayler for his services. Sayler was unable to pay this and appellant now 

looks to Barbour and the partnership for payment. 

The issues presented for review are: 

1. Whether the District Court was correct in making 

its Finding of Fact No. 3, which read: 

"Gordon Sayler was paid all moneys he had coming 

under his contract with TJ's." 

2. Whether the District Court was correct in making 

its Finding of Fact No. 4, which read: 

"Gordon Sayler hired Allan Kosmerl to do certain 

electric work on the premises." 

3. Whether the District Court was correct in making 

its Finding of Fact No. 6, which read: 
"That Gordon Sayler was not the agent of TJ's but 

an independent contractor." 

4. Whether the District Court was correct in making 

its Finding of Fact No. 8, which read: 

"That Defendant Barbour did not enter into any 

separate contract with Kosmerl, did not create 

any estoppel which would entitle him to payment 

but merely advised Kosmerl on one occasion that 

he ought to look out for his own (Kosmerl's) 

interest in his dealings with Gordon Sayler." 

5. Whether the District Court was correct in making 

Conclusions of Law Nos. 1, 2 and 3, based on the above 

findings of fact: 

"1. Nelson and Barbour, d/b/a TJ's, do not owe any 

money to Kosmerl for work performed under the original contract between Kosmerl and Gordon Sayler. 

"2. That there is no basis in law for holding that 

Barbour and Nelson, d/b/a TJ's, owes any money to 

Kosmerl as a result of the work originally contemplated and agreed to be performed under the KosmerlSayler contract. 

"3. Based on the testimony of the parties, but 

particularly that of the defendant Barbour it is 

found that Barbour and Nelson, d/b/a TJ's, owes 

Kosmerl the sum of One Hundred Eighty and 60/100 

Dollars ($180.60) based on a new and separate 

agreement with Kosmerl." 

While five issues are set forth, the actual issue 

before this Court is whether the trial court's findings of 

fact, conclusions of law, and judgment are supported by 

substantial evidence. Rule 52(a), M.R.Civ.P., states in 

pertinent part: 

"Findings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge 

the credibility of the witnesses." 

This Court, in describing its function in reviewing findings 

of fact and conclusions of law tried by a District Court 

without a jury, set forth the following in Montana Farm 

Service Co. v. Marquart (1978), Mont. , 578 P.2d 

315, 316, 35 St-Rep. 631, 633-34: 
II I . . . We have consistently held under such 

circumstances that this Court cannot substitute 

its weighing of the evidence for that of the 

trial court. When there is a conflict in the 

evidence, the findings of the trial court are 

presumed to be correct if supported by substantial evidence.' Sedlacek v. Ahrens (1974), 

165 Mont. 479, 485, 530 P.2d 424. 

"We have also held that the findings of the 

trial court, in a nonjury trial, will not be 

reversed on appeal, unless there is a clear 

preponderance of evidence against the findings. 

Keneco v. Cantrell, (1977), Mont. I 

568 P.2d 1225, 34 St.Rep. 1063 . . " 

In defining substantial evidence this Court stated in 

Olson v. Westfork Properties, Inc. (1976) , Mont . 

"Substantial evidence has been defined by this 

Court as such as will convince reasonable men 

and on which such men may not reasonably differ 

as to whether it establishes the plaintiff's 

case, and, if all reasonable men must conclude 

that the evidence does not establish such case, 

then it is not substantial evidence. The evidence may be inherently weak and still be deemed 

'substantial', and one witness may be sufficient 

to establish the preponderance of a case. (Citations omitted.)" 

Appellant acknowledges the general presumption of 

correctness of the above stated rules and case authority but 

argues the rulings made by the court here were not supported 

by the evidence. We have carefully reviewed each finding of 

fact set forth as an issue in this case and find no error. 

Issue 1 is directed at Finding of Fact No. 3, in which 

the court found that "Gordon Sayler was paid all moneys he 

had coming under his contract with TJ's." Here, the contract was for the amount of $24,000 and the court correctly 

found Sayler had received the entire sum due under the 

contract. Part of the payment was in the form of materials 

purchased or salaries paid directly by Barbour to subcontractors and employees, done with Sayler's knowledge and consent. 

This does not change the fact that Sayler was fully paid for 
the contract, as this was an arrangement made between Sayler 

and Barbour when Sayler got into financial difficulties and 

was threatened with a walkout by both employees and subcontractors. Barbour fully complied with his part of the 

terms of the valid contract and Sayler, having received all 

sums due him, was the sole responsible party for paying the 

electrical contractor's claim. 

Issue 2 is directed to Finding of Fact No. 4 which 

found that Sayler hired Kosmerl to do the electrical work. 

The only dispute appellant has here concerns the conversation between Barbour and appellant concerning Saylerfs 

inability to pay. Testimony indicates that Barbour told 

appellant that he did not believe Sayler would pay him and 

that he should make certain that he received his money. 

Appellant replied that he was certain he would get his money 

from Sayler and that there would be no problem. Appellant 

now argues that even if Barbour's version of that conversation is correct, the most that could be expected was that he 

would first try to collect from Sayler. At the time of the 

conversation, however, appellant understood that various 

people had not been paid and Barbour indicated that he 

(Barbour) would not be making any more payments and that 

appellant should make certain that he receive payment from 

Sayler. The evidence clearly indicates that Kosmerl looked 

to Sayler for payment initially and the court chose to 

believe Barbour's recitation of the conversation to show 

that he did nothing to incur responsibility for Sayler's 

obligations to appellant. The finding of fact of the court 

in this issue is correct based on the evidence. 

Issue 3 is directed at Finding of Fact No. 6 which 

found Sayler to be an independent contractor, not an agent 
of TJ's. Appellant argues there were certain isolated 

incidents which established the fact that the independent 

contractor status of Sayler ceased to exist when he became 

involved in the financial difficulties hereinbefore referred 

to. Appellant alleges that the element of control over the 

work shifted to Barbour at this point. However, there is no 

evidence of control over Sayler, his employees, or subcontractors by either Barbour or Nelson. Nor does appellant 

set forth any authority for his proposition that the independent contractor status of Sayler was destroyed or altered 

by the financial arrangements made during the construction 

period. This Court recently set forth the factors required 

in establishing an independent contractor status. In Sharp 

v. Hoerner-Waldorf Corp. & Aetna Casualty Ins. Co. (1978), 

Mont. , 584 P.2d 1298, 1301, 35 St.Rep. 1430, 

1434, the Court, in construing the Workers' Compensation 

provision in finding an independent status, stated: 

"Section 92-438.1(1), R.C.M. 1947, reiterates the 

basic test in Montana for determining independent 

contractor status, namely, the right of control 

over the person doing the work involved. 'The 

vital test in determining whether a person employed 

to do a certain piece of work is a contractor or 

a mere servant, is the control over the work which 

is reserved by the employer.' Kimbal v. Industrial 

Accident Board (1960), 138 Mont. 445, 449, 357 P.2d 

688. 'The test to determine whether or not an employer-employee relationship exists . . . is the so 

called control test. Under that test an individual 

is in the service of another when that other has the 

right to control the details of the individual's 

work.' State ex rel. Ferguson v. District Court 

(1974), 164 Mont. 84, 88, 519 P. 2d 151. Respondent 

has argued an employer must control the details 

of a performance before the performer is considered an employee. However, the determinative 

test is based on the right, not just the exercise, 

of control. Larson, Workmen's Compensation Law, 

Vol. lA, Sec. 44.10, p. 8-19; Ferguson, supra." 

Here, appellant admits that Barbour did not control the 

details or manner of his work. There was no direction as to 

conduct of the work. It was Sayler who was in charge of the 
work and remained in charge until the completion of the job. 

under these circumstances there is no question that Sayler 

was an independent contractor. See Kimball v. Industrial 

~ccident Board (1960), 138 Mont. 445, 357 P.2d 688; St. 

 egis Paper Company v. U.C.C. of Montana (1971), 157 Mont. 

548, 487 P.2d 524. 

Issue No. 4 concerns Finding of Fact No. 8. The court 

found that Barbour did not enter into a separate contract 

with Kosmerl, did not create any estoppel which entitled him 

to payment, but merely told appellant on one occassion that 

he should look out for his interests in dealing with Sayler. 

Appellant's argument is directed to the fact that Barbour 

induced appellant to continue with the electric wiring and 

by that conversation directed the conduct of appellant's 

work. At best, the evidence indicates that appellant asked 

Barbour where certain outlets should be placed. This certainly is not directing the actual electrical supervision 

for the remodeling job. From the time the fiscal problems 

began, the evidence is clear that appellant was aware that 

Sayler was not making payments to his workers and that 

respondent would not make any more payments to Sayler. Such 

evidence does not show inducement on the part of Barbour to 

have appellant continue the work. 

Issue 5 is directed at Conclusions of Law 1, 2 and 3. 

Appellant argues that he completed the electrical work after 

his conversation with Barbour and while Barbour was paying 

others for their work and that respondent agreed that the 

electrical work was well done and that the services and 

materials claimed on appellant's bills were performed and 

installed. This evidence, however, does not reflect an 

abuse of discretion on the part of the ~istrict Court. he 
court found that respondents Barbour and Nelson had contracted with Sayler, that Sayler employed appellant and that 

there was no relationship or legal theory which justified 

holding respondents responsible for appellant's loss. 

Appellant's contention that he completed the work and that 

respondent Barbour was making payments to others has no 

bearing on the case. It ignores the fact that he was warned 

about possible nonpayment and that he told Barbour he looked 

to Sayler as the responsible party in paying for his services. In addition, there is no evidence indicating that 

Barbour ever took over the direction of the job as appellant 

asserts. Those statements are not supported by the record. 

Appellant failed in his attempt to prove by controverted 

evidence that the trial court erred in its findings of fact 

and conclusions of law as previously set forth. The record 

amply supports the findings, conclusions, and judgment of 

the District Court and the case is affirmed. 

We Concur: