Sprout, Waldron & Company (not a party to this appeal) was the general contractor to erect a mill, some silos, warehouses, and offices for the owner of land. The defendant, Herm Hughes and Sons, Inc. (hereafter referred to as Hughes), was an independent sub-contractor who contracted to construct a warehouse and other smaller rooms for the general contractor. Hughes contracted with Mark Hayes Masonry (hereafter referred to as Hayes) to construct the masonry walls in the warehouses and other rooms. The plaintiff, Hinds, was an employee of Hayes; and while performing his work, he was injured by the negligence of an employee of Hughes. There was no written contract between Hughes and Hayes, and the relationship between those two companies has to be gleaned from what the employees of each party did.
The trial court granted, summary judgment for the defendant, Hughes, on the basis that the plaintiff was in the employ of Hughes and, therefore, could not recover because of the provisions of our statutes.
U.C.A.1953, 35-1-60 provides that the recovery of workmen’s compensation is the exclusive remedy against an employer for injuries occurring on the job. U.C.A.1953, 35-1-42 provides:
* * * * * *
*562Where any employer procures any work to be done wholly or in part for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, such contractor, and all persons employed by him, and all subcontractors under him, and all persons employed by any such subcontractors, shall be deemed, within the meaning of this section, employees of such original employer. Any person, firm or corporation engaged in the performance of work as an independent contractor shall be deemed an employer within the meaning of this section. The term ‘independent contractor,’ as herein used, is defined to be any person, association or corporation engaged in the performance of any work for another, who, while so engaged is independent of the employer in all that pertains to the execution of the work, is not subject to the rule or control of the employer, is engaged only in the performance of a definite job or piece of work, and is subordinate to the employer only in effecting a result in accordance with the employer’s design.
The trial court could see no conflict in matters of evidence and so he ruled that Hinds was an employee of Hughes and, therefore, his exclusive remedy for his injuries was workmen’s compensation insurance. This appeal followed from that summary judgment.
In 1975, U.C.A.1953, 35-1-62 (Chapter 101, Laws of Utah, 1975) was amended to read:
When any injury for which compensation is payable under this title shall have been caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of said employer, the injured employee . . . may claim compensation and the injured employee . may also have an action for damages against such third person. .
For the purposes of this section and notwithstanding the provisions of section 35-1-42, the injured employee or his heirs or personal representative may also maintain an action for damages against subcontractors, general contractors, independent contractors, property owners or their lessees or assigns, not occupying an employee-employer relationship with the injured or deceased employee at the time of his injury or death.
This amendment enables an employee to sue a tortfeasor, not his employer (or the employer’s agent, etc.), even though the injured person and the tortfeasor may be engaged in the same employment.
The question that we are required to determine is whether or not Hughes was a statutory employer of Hinds at the time of the accident. The written contract between the landowner and the prime contractor contained this provision:
Sub-Contractor shall be an independent contractor with respect to the work to be performed hereunder. Neither Sub-Contractor nor its Sub-Contractors, nor the employees of either, shall be deemed to be the servants, employees or agents of Prime Contractor. Sub-Contractor shall have complete control over the details of the work and the manner in which the work is to be accomplished and shall follow the desire of the Prime Contractor only as to the result to be achieved.
This provision may not be the actual agreement between Hughes and Hayes, but it indicates the intent of the landowner that all work not to be done by the prime contractor was to be done by independent subcontractors.
Whether or not Hughes was the statutory employer of Hinds would depend on whether or not he or his employees had the right to control the work done by Hinds, not that they actually did control that work.1
The job foreman for Hayes, Thomas R.' Thomas, gave his deposition and stated therein that Ray Jones, the construction superintendent for Hughes, was present. Jones gave instructions to make sure the “rebar” would get placed where it belonged *563and to see that the bricklayers were doing the job the way it was supposed to be done. He also testified that Jones had authority to give directions to the bricklayers with regard as to how they did the work and he (Jones) could do that even when he (Thomas) was absent from the job.
He further testified that Jones had authority to direct which part of the building Hayes’ men should work on during any given day; and that Jones had the authority to suspend their work on any given day. Mr. Thomas further testified that Jones had authority to go ahead and direct the men who worked under him (Thomas).
Ron Thomas, a hod carrier for Hayes, testified in his deposition that Ray Jones did not give any specific instructions on how to do his work; and that when Tom Thomas (job foreman for Hayes) was not on the job, no one was left in charge. He also testified that Ray Jones would not take charge of the crew.
There appears to be a conflict in the evidence as to the role played by the construction foreman of Hughes. Since Mr. Hinds’ right to recover in this case depends upon his showing that Hughes did not have any right to control the work of the Hayes employees, it would seem that a trial of the issues would be necessary inasmuch as there is a conflict in the evidence on a material issue of fact.
We do not search the record to reverse a trial court;2 yet, we are compelled to note that while both parties make reference to the depositions in the file, none of those depositions have been opened. They remain sealed. It could be that the parties placed copies of the depositions before the trial judge, but we don’t know that. We think a trial will be required in order to ascertain whether or not Hayes was an independent contractor whose employees were not subject to the control of Hughes.
The judgment is reversed and the case remanded for a trial upon the issues. Costs are awarded to the appellant.
CROCKETT and HALL, JJ., concur.. Bambrough v. Bethers, Utah, 552 P.2d 1286 (1976).
. Anderson v. Gousset, 60 Ill.App.2d 309, 208 N.E.2d 37 (Ill.App.1965); Limb v. Federated Milk, 23 Utah 2d 222, 461 P.2d 290 (1969).