Anderson v. Steurer
| Decision Date | 14 June 1965 |
| Docket Number | No. 50584,No. 2,50584,2 |
| Citation | 391 S.W.2d 839 |
| Parties | Emil ANDERSON, (Plaintiff) Appellant, v. John STEURER, Jr., (Defendant) Respondent |
| Court | Missouri Supreme Court |
Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.
Robertson, Baker & De Voto, Leo C. De Voto, Jr., St. Louis, for respondent.
This is an appeal from a summary judgment entered by the trial court in favor of defendant. We have jurisdiction because the prayer of the petition sought $120,000.00.
The plaintiff, Emil Anderson, a lather employed by the George Stroup Lathing Company, was injured when a scaffold collapsed. The scaffold and its boards were furnished by the defendant, John Steurer, Jr., a plastering contractor. In his fourth amended petition plaintiff sought damages for his personal injuries, alleging that defendant was guilty of several specific acts of negligence, particularly in connection with the furnishing of the plank that broke and precipitated plaintiff's fall. Defendant pleaded contributory negligence, but also alleged that plaintiff was the employee of a subcontractor doing work on or about the premises where the principal contractor was doing work and was a statutory employee of this defendant. After certain requests for admissions by both parties and submission of interrogatories and the taking of various depositions, including depositions of defendant Steurer, George Stroup of the lathing company, and a representative of the general contractor on the job, defendant filed his motion for summary judgment under Civil Rule 74.04, V.A.M.R. In substance, the motion contended that there was no dispute as to any material fact, that plaintiff was a statutory employee of defendant, and that plaintiff's exclusive remedy, in so far as defendant was concerned, was under the Workmen's Compensation Act, in view of Sec. 287.120 (). Under that section an employer subject to the act is liable for compensation but is 'released from all other liability therefor whatsoever, whether to the employee or any other person.'
Certain facts are not in dispute. The George Moeller Construction Company, hereinafter referred to as Moeller, had a general contract to construct a church for the Mount Tabor Evangelical and Reformed Church. Moeller entered into a written subcontract with John Steurer, Jr., hereinafter referred to as Sturer, for the lathing and plastering work on the church. Both Moeller and Steurer operated under the Workmen's Compensation Act and Steurer furnished certificates of compensation insurance to Moeller. Another contractor, George Stroup Lathing Company, hereinafter referred to as Stroup, actually performed the lathing work on the job for Steurer. Steurer then did the plastering. The premises where the work was performed did not belong to Moeller, Steurer or Stroup. Stroup also operated under the Workmen's Compensation Act and carried compensation insurance. Compensation ($8,659.29 plus medical expenses of $2,098.19 up to November 14, 1963) was paid by that carrier to plaintiff, who then brought his suit against Steurer as a third party whose alleged negligence resulted in plaintiff's injuries.
The case is briefed in this court by defendant on the theory that the proof was unassailable that Moeller was the general contractor, that Steurer was a subcontractor under Moeller to do the lathing and plastering, that Steurer in turn subcontracted the lathing to Stroup, and that plaintiff was an employee of Stroup. If this were true, then we would have presented squarely for decision the question of whether an intermediate subcontractor in such a direct chain of relationship would have the same exempt status as statutory employer from third party negligence actions as the general contractor occupies under the doctrine of the case of Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. However, plaintiff strenuously asserts that there was a genuine issue as to the relationship between Steurer and Stroup. He contends that there was a basic issue of fact as to whether plaintiff's employer, Stroup, was a subcontractor of defendant Steurer, or whether there was a joint adventure of these two contractors. This calls, first, for a careful analysis of the evidence before the trial court on that issue.
The evidence as to the actual relationship between Steurer and Stroup was as follows: Plaintiff's fourth amended petition alleged that Stroup was a subcontractor doing lathing work and that Steurer was a subcontractor doing plastering work, and that both were hired by Moeller, the general contractor. This latter contention is denied by Steurer, and there was nothing in any of the depositions or admissions to indicate that Moeller hired or directly contracted with Stroup. Steurer, in his deposition, testified that customarily in their work the plastering contractor contracts for both lathing and plastering. He said that Stroup had been doing all of the lathing for him on his commercial jobs for several years. He would call on Stroup for a price for the lathing on a particular job, and Steurer then would bid the job with his bid covering both lathing and plastering. If Steurer's bid was low, he would get the job. Stroup then would go ahead and do the lathing. Payment from the general contractor would come to Steurer in one check and he then would pay Stroup. Steurer testified that this was a subcontracting operation, and he had no right to control Stroup or his men. Stroup, in his deposition, testified that he had an oral contract with Steurer to perform the lathing work on the Mount Tabor job, the agreement being made about one year before March 1, 1960. That would have been prior to the contract of June 2, 1959, between Moeller and Steurer. Stroup further testified that Steurer usually would call him before bidding a job, and Stroup would take the job off the plans and specifications and prepare an estimate. Steurer then would compile his estimate and put the estimates together and send in a bid. With reference to payment, Stroup said that the practice was for him to work a month, prepare an estimate and then send it to Steurer. He was to be paid in thirty days. Any time Steurer has been paid, Stroup has been paid. As a rule, he said, when Steurer isn't paid by the general contractor, Stroup is not paid, although he had known of times when he pressured Steurer and the latter paid him before payment by the general contractor to Steurer. Stroup said that on this Mount Tabor job he would not have expected pay from Steurer if there had been no payment by Moeller to Steurer. Stroup testified further that if there were any complaints about his work or corrections to be made, Steurer would contact him and he then would handle his men.
Steurer contends that this evidence shows by unassailable proof that Stroup was a lathing subcontractor under Steurer. On the other hand, plaintiff contends that this is not true and that there is a genuine issue of fact as to whether there might be a joint adventure between Steurer and Stroup rather than a situation in which Stroup was a subcontractor of Steurer.
The rule is well established that we must view the record on motion for summary judgment in the light most favorable to the party against whom the judgment is rendered. Cooper v. Finke, Mo., 376 S.W.2d 225, 228. A summary judgment is a drastic remedy and great care should be exercised in its utilization. Cooper v. Finke, supra, 229.
Is there unassailable proof of a subcontractor relationship? Stroup testified that he had an oral contract with Steurer for the lathing. Steurer said that he had a subcontract with Stroup. Neither, however, undertook to testify as to any details of the arrangement. They testified to some extent as to customary general practice, but did not undertake to testify as to what this specific agreement was with reference to the amount Stroup was to be paid, how and when it was to be paid, whether Steurer required Stroup to carry compensation insurance, whether there was any sharing of profits or losses, or what the agreement was as to whether payment by Steurer to Stroup was contingent on receipt of payment by Steurer from the general contractor. Stroup testified that he, on request, submitted on estimate figure to Steurer and had a contract for the work even before Steurer received the job. He was not asked, nor did he explain what happened if Steurer was not the successful bidder. Steurer referred to receiving a bid from Stroup. He did not undertake to testify as to whether this was simply a bid subject to acceptance if and when Steurer received the contract.
As indicated above, plaintiff urges that there was sufficient evidence in the record from which it could be found that Stroup was a joint adventurer with Steurer. He cites some cases as supporting this position, the nearest of which on the facts is Ohio Valley Builders Supply Co. v. Wetzel Construction Co., 108 W.Va. 354, 151 S.E. 1. He then contends that a summary judgment should not have been entered, and that the question of fact as to whether Stroup was a subcontractor or a joint adventurer should have been triable by jury.
Upon this state of the record, we are unable to say that there was unassailable proof as a matter of law that Stroup was a subcontractor of Steurer. The facts as developed indicate a subcontract, but there is the possibility, as plaintiff contends, that a development of all the facts might be sufficient to show the existence of a joint adventure between the two parties. Plaintiff's brief also mentions the possibility that Stroup was a subcontractor to the general contractor, but there is no evidence whatsoever to support this contention. Under these circumstances, we normally would reverse and remand this case for trial. However, as hereinafter set out, we have concluded...
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