Platco Corporation v. Shaw , 78 N.M. 36 ( 1967 )

OPINION

HENSLEY, Jr., Chief Judge, Court of Appeals.

This appeal comes from the same cause of action that was before this court in Platco Corporation v. Colonial Homes, Inc., 78 N.M. 35, 428 P.2d 9 decided May 19, 1967. In the district' court the cause was first tried -on the issues between the plaintiff and the defendant, Colonial Homes, Inc., and from an adverse judgment the plaintiff appealed. While the appeal was pending, the issues between the plaintiff and the defendant, M. A. Shaw, were tried and a judgment was then given in favor of the plaintiff. The complaint was on a single claim against both defendants. The defendant, M. A. Shaw, was president of the defendant corporation, Colonial Homes, Inc. The • appeal brought to this court by the plaintiff-appellant was dismissed because it had been prematurely filed.

A summary of the facts discloses that the plaintiff is a Texas corporation authorized to do business in New Mexico. The defendant, Colonial Homes, Inc., is a New Mexico corporation. The defendant, M. A. Shaw, is a resident of New Mexico. In 1961 an oral agreement was entered into in New Mexico whereby the plaintiff agreed to pull the casing and to plug an .oil well in Arizona for the defendant, Colonial Homes, Inc. The complaint filed by 'the plaintiff against both defendants was to recover the compensation due the plaintiff pursuant to the agreement. At the conclusion of the trial on the issues between the plaintiff and Colonial Homes, Inc., the trial court found inter alia that the plaintiff had no contractor’s license in Arizona, that the law of Arizona denied recovery by unlicensed contractors and that the law of Arizona controlled in this instance. On the trial of the issues between the plaintiff and the defendant, M. A. Shaw, the plaintiff amended its complaint by adding a second count in which it alleged the relationship of master and servant. The trial court allowed the amendment and at the conclusion of the trial found that the relationship between the defendant, M. A. Shaw, and the plaintiff was that of master and servant and concluded that the plaintiff was entitled to recover from the defendant. From a judgment in favor of the plaintiff, the defendant, M. A. Shaw, brings this appeal.

The first point raised by the appellant is that the action is barred by the Arizona Contractor’s Licensing Laws in that the plaintiff was not a licensed contractor as required by such laws as a condition to recovery for work performed. Since our disposition of the second point raised by the appellant forecloses this contention it need not be considered.

The second point challenges the sufficiency of the evidence to support the trial court’s finding that the relationship of the appellant and the appellee was that of master-servant or employer-employee. The testimony of George Platt, president of the plaintiff corporation, disclosed that in a telephone conversation with the defendant, M. A. Shaw, on November 4, 1961, the defendant stated that a Mr. Bob Long would supervise the entire operation. Further, that Bob Long met the crew furnished by the plaintiff at the job site and told them what to do and how to go about it every day. The defendant, M. A. Shaw, made no claim in his testimony that the relationship was that of independent contractor. In short, he denied having any connection with the plaintiff either by way of contract or employment. The defendant-appellant in his Brief in Chief admits that Bob Long was his agent. Applying the tests summarized in Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9, to determine whether or not a given status is that of independent contractor or employee, the finding of the trial court is supported by substantial evidence. Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299.

Finally, the appellant claims that the trial court erred in permitting the appellee to amend its complaint to include a second count. Obviously this claim of error lacks merit in view of § 21-1-1(15) (a), N. M.S.A.1953. This statute authorizes a party to amend his pleading as a matter of course at any time before a responsive pleading is served. Here the defendant, M. A. Shaw, had not filed a responsive pleading at the time of the amendment. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200. Also, under this claim of error the appellant urges that the two counts of the amended complaint are inconsistent and that the appellee should, under the doctrine of election of remedies, assert and rely on either one, but not both, of his positions. Again, the appellant is met by § 21— 1-1(8) (e), N.M.S.A.1953. This statute permits a party to state as many claims as he has regardless of consistency. Honaker v. Ralph Pool’s Albuquerque Auto Sales, Inc., 74 N.M. 458, 394 P.2d 978.

Finding no reversible error the judgment of the trial court is affirmed.

It is so ordered.

NOBLE, J., concurs.