Ballard v. Leonard Bros. Transport Co., Inc., 57639

• Court: United States State Supreme Court of Missouri
• Citation: 506 S.W.2d 346
• Docket Number: No. 2,No. 57639,57639,2
• Parties: Joseph H. BALLARD and Judith Carol Ballard, Appellants, v. LEONARD BROTHERS TRANSPORT CO., INC., Respondent
• Decision Date: 11 March 1974

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506 S.W.2d 346 Joseph H. BALLARD and Judith Carol Ballard, Appellants,
v.
LEONARD BROTHERS TRANSPORT CO., INC., Respondent. No. 57639. Supreme Court of Missouri, Division No. 2. March 11, 1974.

Page 347

Robert L. Shirkey, Paul Crider, Jr., Kansas City, for appellants.

R. Lawrence Ward, Shughart, Thomson & Kilroy, Kansas City, for respondent.

HENRY I. EAGER, Special Commissioner.

This is an action for damages arising out of personal injuries to plaintiff Joseph H. Ballard. In the first count he seeks his own damages; in the second, his wife seeks damages for loss of society and consortium. They appeal from an adverse judgment. The negligence alleged was in the furnishing by defendant for plaintiff's use (and we refer as such to the husband) of a commercial trailer with a defective floor, causing plaintiff to step through a hole in the floor while loading it. The details of the alleged negligence and of the injuries are immaterial here. The plaintiffs sought, respectively, $75,000 and $25,000, the notice of appeal was filed before January 1, 1972, and we have jurisdiction. The trial court rendered summary judgment for the defendant. The original answer, in addition to denials, pleaded

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plaintiff's own negligence as causative or contributory. An amended answer pleaded the further defense that plaintiff was subject to the Missouri Workmen's Compensation Act, Chapter 287, RSMo 1969, V. A.M.S., ¹ and that whatever rights and remedies he and his wife might have arose solely under the said Act and that they are 'completely barred as a matter of law from maintaining this action.' This latter defense constitutes the basic, and really the only, question on this appeal. Put more specifically, defendant contends that plaintiff was its employee under the so-called 'borrowed servant' doctrine, that both defendant and plaintiff were operating under the Workmen's Compensation Law, and that plaintiff's only possible remedies are those provided by the Act. The Court entered its judgment upon the pleadings, the deposition of plaintiff, the interrogatories and answers, and the exhibits attached to defendant's motion. We shall state the facts as they may be gleaned from those documents. Most of the facts come from plaintiff's deposition.

Plaintiff had been a truck driver for some years when he was employed by Harris Motor Service of Kansas City on July 1, 1968; he testified that he left that employment on July 1, 1970; he was a member of the Teamsters' Union. It appears that plaintiff was inactive because of his injury from July 18, 1969 to January 7, 1970, but that his work and the nature and control thereof, as described, continued until its final termination on July 1, 1970. He stated that he quit work in July, 1969, because his back was hurting too much as a result of his injury. The testimony showed that Harris (as we shall refer to that entity) owned several tractors and employed about seven drivers; that Harris 'hired the tractors out' to others to haul their trailers and merchandise, along with the drivers; that Harris leased the tractors. Harris owned no trailers. Plaintiff's driving, throughout his employment, was 'mostly' with trailers of defendant Leonard Brothers; he did general hauling for Leonard Brothers, divided between in-town hauling and trips to and from Lawrence and Topeka, Kansas; these were van-type trailers, generally about 40 feet long. Specifically, plaintiff testified that during this two year period all of his pickups were for Leonard Brothers. Counsel for plaintiff concede in their brief that during the two years in question 'all of his pickups were for Leonard Brothers.' Plaintiff went to Harris's on 'most mornings,' picked up a tractor, drove to Leonard Brothers' dock at 520 Madison in Kansas City, Missouri, and reported to Joe Lock, Leonard's terminal manager (as indeed the other drivers did), who then gave him instructions, usually written, on his work for the day; frequently he loaded his trailer at the Leonard dock and delivered the freight elsewhere; at other times he left to pick up freight. Much of the time he hauled paper from the Lawrence Paper Company at Lawrence, Kansas, delivering it to Leonard's; he also hauled much general freight, in Kansas City and outside, all for Leonard Brothers; at times he loaded or unloaded his freight or helped to do so. Mr. Harris never came over to Leonard Brothers to direct his work; in fact, plaintiff did not report in at Harris's in the morning, but simply picked up his tractor and went to Leonard Brothers. This was his practice for the two years. He usually look the tractor back to Harris's at night but sometimes (about 10% of the time) left it at Leonard's. Plaintiff testified that he looked to Joe Lock, Leonard's terminal manager, for his 'daily direction on where to go, what to pick up and things of that nature.' He did not report back to Harris on 'what type' of work he was doing, and he filed no reports with Harris. He turned in his time card to Harris once a week and was paid by Harris. Plaintiff 'had insurance' through Harris but did not know about Blue Cross and Blue Shield. Sometimes a dispatcher at Leonard Brothers would tell him where to go

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and what to do; this man worked under Lock. Leonard had 15--20 trailers of the van type. For the trip on which plaintiff was injured Lock directed him specifically which trailer to take, because it had a large door. The injury occurred while plaintiff (on a trip for Leonard) and another man were pushing a very large construction tire, weighing perhaps 1,000 pounds, into the trailer. The petition alleged a fall while unloading a trailer, but plaintiff's testimony in his deposition was as above stated. The difference is wholly immaterial to our issue. Plaintiff generally worked a five-day, forty-hour week, with considerable overtime, all being on Leonard Brothers' business. Plaintiff had done other driving for Leonard on the day of his injury. He frequently switched trailers during the day from loaded to unloaded and vice versa. Lock usually told plaintiff what trailer to take and use. Plaintiff said that he reported his injury orally to Lock. He later reported it to Harris. He apparently continued to work for about two weeks after the injury, but finally told Lock that he would have to quit.

In answers to interrogatories, plaintiff stated: that he was employed by Harris Motor Service; that Leonard Brothers owned the trailer in question; that he knew of no 'lease'; that he had made claim for Workmen's Compensation from Harris; that the trailer in question bore the name of Leonard Brothers. In answer to plaintiff's interrogatories, defendant stated that it had no...