I concur in the result reached in the foregoing opinion, but cannot subscribe to all that is stated therein.
It is my view that under the facts in this case, which are[3] fairly stated in the opinion written by Mr. Justice Morris, and under the prior decisions of this court cited in that opinion, and under the principles of law announced in Ashley v.Safeway Stores, 100 Mont. 312, 47 P.2d 53, the defendant Letcher was an independent contractor, and the doctrine ofrespondeat superior has no application. Defendant Letcher had *Page 386 the sole control over his own operations, so far as the means and methods of carrying out the details of his work were concerned, and the Montana Rural Rehabilitation Corporation was interested only in the result of his work; it having no control over the means or method of accomplishing it. Letcher being an independent contractor, and not a servant, of the Montana Rural Rehabilitation Corporation, it is in no way responsible for his negligence.
Believing, as I do, that the defendant Letcher was an independent contractor, it follows that at no time was he a servant of the corporation. I cannot find in this case the necessary criteria from which to determine that Letcher was a servant of the corporation but, at the time of the accident, was acting without the scope of his employment.
I agree that the verdict is inadequate and that a new trial[4] should be granted as against the defendant Letcher. However, there are cases cited in the opinion of Mr. Justice Morris in support of the conclusion that the verdict is inadequate, wherein the court ordered the award increased. By agreeing that the verdict is inadequate I am not to be understood as subscribing to the view that it is ever proper for this court in personal injury cases to increase an award of damages. I think our only right in such a case is to send the case back for a new trial, before the jury, as we are doing here.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICE ANDERSON concur in the foregoing concurring opinion. *Page 387