Dunn v. General Motors Corp., 55249

• Decision Date: 10 May 1971
• Docket Number: No. 55249,No. 2,55249,2
• Citation: 466 S.W.2d 700
• Parties: Norman Glenn DUNN, Appellant, v. GENERAL MOTORS CORPORATION, Respondent
• Court: Missouri Supreme Court

Page 700

466 S.W.2d 700

Norman Glenn DUNN, Appellant, v. GENERAL MOTORS CORPORATION, Respondent.

No. 55249.

Supreme Court of Missouri, Division No. 2.

May 10, 1971.

Benson Cytron, House Springs, for appellant.

Murphy & Kortenhof, Joseph M. Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent.

HENRY I. EAGER, Special Commissioner.

This is a suit for personal injuries against General Motors Corporation for an injury which occurred on March 29, 1968, at defendant's Chevrolet-Fisher Body Plant in St. Louis. The damages claimed are $32,184.67. The appeal is from the sustaining of defendant's motion for summary judgment. The details of the injury are immaterial here, and it will suffice to say that it occurred when plaintiff, starting to descend from an unloading platform or dock, fell to the ground when a post and a handrail came loose from the floor of the dock. Plaintiff was a tractor driver for 'Action Transfer Company,' individually owned by his farther, Norman E. Dunn. We shall refer to General Motors as G-M and to the transfer company as A-T. We are interested here in the following phases of the General Motors operation: it received automobile parts and other materials from many locations, transported in trailers by 92 truck lines or carriers; it needed the various supplies at different and precise times; it is said and not denied that the carriers were required by their published tariffs to deliver the trailers to defendant's dock; apparently they preferred not to have their own drivers wait to do this, and 88 of them contracted with Action Transfer to spot the trailers for them when needed at one of defendant's three docks. A-T owned two specially equipped tractors and employed two drivers, one of whom was plaintiff. The carriers dropped off the trailers in the yard of the Chevrolet plant or the yard of the G-M warehouse; plaintiff was regularly given, by a G-M employee, a list of the trailers desired, showing to which one of three docks they should be taken; he then located these, one by one, hooked on to them with his special hydraulic lift, and spotted them, one by one, at the required bodk for unloading. So far as the evidence shows, the furnishing of the list was the only direction given to plaintiff by G-M. After the trailers were unloaded, plaintiff again moved them to the proper space or spaces on G-M premises, from which the carriers would pick them up. A-T had no contract with G-M; its contracts for this work were on forms executed separately by 88 of the carriers; it did not work for three others who had declined to so contract, and it refused to spot trailers for one other. A-T has refused on request of G-M, to spot trailers for those four carriers. It was paid $3.50 for each trailer which it spotted, by the carrier which owned it. A-T had, over a period of 90 days, received $31,351.50 from the carriers. In the same period it had performed certain incidental services for G-M, for which it received $663.50. Those services consisted of: moving trailers which had been directed by G-M to the wrong dock, or at the wrong time, moving G-M's own trailers when it had no tractor available, and perhaps similar incidental movement. Plaintiff was paid solely by A-T, and took all his orders from A-T except for the placement and sequence of the trailers as stated; all of his work was on G-M premises except when he drove out for gas or repairs or in movement from one part to another. A-T had written to G-M stating specifically which carriers it would spot trailers for. It had performed this service by the method stated since 1958; for eight years prior to that time the work was similarly performed by American Carloading Company. Plaintiff performed no loading or unloading work. The spotting of trailers was the principal, if not sole, business of A-T. G-M states in its brief that under the published tariffs, the rates of the carriers cover 'one movement going to the plant, and one movement coming out of the plant.' It seems obvious that this included a delivery to the dock, for the carriers have continuously assumed to pay A-T for that work. The material delivered in the trailers is for use by G-M in the assembly of augomobiles. That is not disputed. One truck line maintains its own men on the G-M premises to spot its trailers; the other three are called by G-M when it wants their trailers and they send someone there to spot them. G-M does none of this work by its own employees.

Plaintiff pleaded the bare substance of these facts and his injury, allegedly due to defendant's negligence. The answer denied sundry allegations, pleaded contributory negligence, and specifically pleaded that plaintiff was a statutory employee of G-M under § 287.040 RSMo 1959, V.A.M.S., 'working under contract for and on the premises of this defendant,' and also in the 'usual conduct of defendant's business'; also that plaintiff was prosecuting a claim against A-T under the Missouri Workmen's Compensation Laws; that plaintiff was thus prohibited from maintaining the common law action. No reference was made to the 'borrowed servant' defense. The evidence recited above all appeared from the depositions of plaintiff and his father, taken and filed in the cause. Thereafter, defendant filed its motion for a summary judgment, in which it alleged: that there was no genuine issue as to any material fact; that plaintiff was a statutory employee of G-M under § 287.040, supra, and was barred from 'bringing a common-law action against defendant.' Again, no mention was made of the 'borrowed servant' doctrine. The motion for a summary judgment was sustained and, after an unavailing motion for a new trial, the plaintiff appealed.

The procedure and principles governing motions for summary judgment are set out in our Rule 74.04, V.A.M.R. We need not review that rule here, but we do note that it provides that in no case shall such a judgment be rendered 'unless the previling party is shown by unassailable proof to be entitled thereto as a matter of law.' (Subsection h.) Section 287.040--(1), supra, provides: 'Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.' The burden of proving the three essential requirements of this statute is on the party claiming the benefit of it, and this would certainly apply to the 'unassailable proof' required by Rule 74.04; the defense is an affirmative one, Greiser v. Western Supplies Co., Mo., 406 S.W.2d 13.

The points of the appellant here are, in substance: that the evidence did not 'unassailably show' the statutory elements necessary to make plaintiff a statutory employee of G-M; and that the 'borrowed servant' doctrine cannot be raised for the first time on appeal. Defendant says: that it was entitled to a summary judgment because the 'undisputed facts' showed that plaintiff was a statutory employee of G-M; and that the facts also showed that plaintiff was a 'borrowed servant' of G-M.

The 'borrowed servant' contention may be ruled rather briefly. This is a common-law defense, which must be affirmatively pleaded and proved. It was not referred to in any way in defendant's answer or in its very specific motion for summary judgment. It is not shown that it was, or could have been, referred to in the trial court on the hearing of defendant's motion. Had it been properly raised, the plaintiff might have wished and would have been entitled to controvert the defense by affidavits or other evidence; we cannot say that there could not have been any justification for this or that all the evidence on the 'borrowed servant' theory would have necessarily been the same as tha on the statutory employee defense. Under these circumstances this Court will not consider the 'borrowed servant' defense for the first time on appeal. The point was expressly ruled against the defendant in the case of Walton v. United States Steel Co., Mo., 362 S.W.2d 617, loc. cit. 620. There was no trial here of an issue by implied consent, for the issue was not tried or presented in any form to the trial court. And see Schimmel Fur Co., Inc. v. American Indemnity Co., Mo., 440 S.W.2d 932. Further, defendant pleaded in its answer that plaintiff was prosecuting a Workmen's Compensation claim against A-T, a fact which seems somewhat inconsistent with defendant's present claim that plaintiff was G-M's servant, 'borrowed' or not. The assertion of this defense is not merely an additional reason for affirming the trial court's judgment, as defendant suggests, but it constitutes the injection of a completely different theory of defense, and it will not be considered by us under these circumstances. Since the case is to be remanded, the parties may wish to amend their pleadings.

The substantive question here is whether plaintiff was a statutory employee of G-M under § 287.040, ¹--or rather, whether the evidence 'unassailably' showed that he was. We hold that it did not. Each side cites a number of cases; we need not review them in full detail, for we have determined that two of the statutory elements should be decided as fact questions: (1) whether plaintiff was working under a 'contract' with G-M, and (2) whether he was doing work which was 'an operation of the usual business' of G-M. We note that plaintiff took no part in the unloading of cargo; that G-M's own emplolyees had done that work for years. That the only directions plaintiff received from G-M was a list of the trailers to be spotted; that in all other respects he was apparently subject to the control of his own employer, A-T. The very small amount of work which he performed directly for G-M was kept separate from his main work, and was...