Ferguson v. Air-Hydraulics Co.

• Decision Date: 27 February 1973
• Docket Number: No. 34670,AIR-HYDRAULICS,34670
• Citation: 492 S.W.2d 130
• Parties: Leo FERGUSON, Plaintiff-Respondent, v.COMPANY, Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 130

492 S.W.2d 130

Leo FERGUSON, Plaintiff-Respondent, v. AIR-HYDRAULICS COMPANY, Defendant-Appellant.

No. 34670.

Missouri Court of Appeals, St. Louis District.

Feb. 27, 1973.

Robert H. Burns, Clayton, for defendant-appellant.

Kohn, Shands & Gianoulakis, Alan C. Kohn, Thomas J. Frawley, St. Louis, for plaintiff-respondent.

SIMEONE, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County in favor of the plaintiff-respondent, Leo Ferguson, and against the defendant-appellant, Air-Hydraulics Company, in the amount of $10,000 for injuries sustained as a result of the alleged negligence of an employee of Air-Hydraulics.

This appeal involves two issues: (1) was plaintiff precluded from recovering for damages because he was contributorily negligent as a matter of law; and (2) was the plaintiff a statutory employee or a borrowed servant of Air-Hydraulics and, therefore, limited to recovery under the provisions of the Workmen's Compensation Act? We resolve both issues adverse to appellant and affirm the judgment.

At the time of his injury Ferguson had been employed by Ryder Truck Leasing (sometimes called Ryder Truck Rentals or Ryder Rents Trucks) for a period of twenty-six years. At the time of the injury, and for some twelve years prior thereto, Ryder Truck had a contract with Ryerson Steel Company under which Ryder leased a truck with Ryerson's name on it and supplied a driver (Ferguson) to Ryerson for the purpose of delivering goods. Ferguson had made deliveries to Air-Hydraulics for five or six years. Under the arrangement, Ferguson received his paycheck from Ryder. He was a member of Teamsters Local 600.

On August 21, 1970, Ferguson reported for work at Ryerson, made out the bills of lading for various stops, and checked the load on his truck. He had thirteen deliveries to make that day, the delivery of steel to Air-Hydraulics being the last. The truck was a five-ton stake bed flat body steel truck with fourteen steel stakes, six on each side of the bed and two in the rear. The bed of the truck was 3 1/2 to 4 feet from the ground. Ferguson testified that he arrived at the Air-Hydraulics plant in St. Louis County at approximately 11:30 a.m., drove around to the back and parked by an overhanging door. He informed the employees of Air-Hydraulics that he had a delivery for them consisting of a load of steel. The load consisted of steel sheets weighing 2,500 to 2,600 pounds. He spoke to Michael Moore who got a forklift truck. Ferguson removed three or four of the stakes on the truck bed to enable Moore to remove the load with the forklift. Ferguson knew that the forklift had been used to help unload the truck, but this was the first time that he had seen Moore operate the lift. The load of steel varied in size, 48 96 and 48 120 , and was banded by steel bands. The steel rested on some two-by-fours so that there was a space between the bed of the truck and the steel to accommodate the forks of the forklift.

Ferguson testified that the forklift, in a position perpendicular to the truck and with Moore at the controls, picked up the load and began backing toward the door of the plant. When Moore attempted to lift the load of steel from the truck he had to lift the load two feet above the bed of the truck to clear the stakes. When he did so, the steel began to bend so that the ends of the steel sheets were lower and it was then necessary for Ferguson to remove two additional stakes, one from each end of the load. Moore lifted the steel and began backing up the forklift toward the door of the plant. After backing up five or six feet, the back wheels of the forklift, due to the weight in front, came up off the ground and the load and forklift tilted. When that happened, another employee (Neihoff) of Air-Hydraulics stood on a 'trailer hitch' at the rear of the forklift, but according to Ferguson the back wheels did not return to the ground. Then Ferguson got on the forklift to the right of Moore who was at the controls. Ferguson was 'partly seated' on the lift with his left hand behind Moore and his right hand extended forward, holding on to a stationary bar on the forklift. There is also a movable bar on the forklift which meets the stationary bar when the lift is lowered. Moore started to back up again toward the building, made a motion to his right and said 'I'm going to put it over there.' When Moore made the motion toward the right, plaintiff turned his head to the right. He then felt a sharp pain in his right hand which was caught between the stationary bar and the movable one. The injury occurred when Moore lowered the load so that the movable bar came down on Ferguson's right hand which he had placed on the stationary bar. All of the above events took place within a very short period of time.

As a result of the injury Ferguson suffered a badly mauled middle finger which required amputation at the mid-knuckle, and two other fingers were injured. He testified that he endured great pain, his fingers remained numb and stiff; he was required to see a doctor regularly and missed twelve weeks of work.

On cross-examination Ferguson admitted that the normal procedure is to lower the load once it is clear of the truck, and that such procedure was customary. He also admitted that it was general practice to lower the load once it had cleared the truck, and no one had asked him to jump on the forklift. The movable bar (not the stationary one) had the words 'Keep Hands Clear' printed on it. A skull and crossbones also appeared on the movable bar. Ferguson testified he did not see the words or the figure. He also stated that he did not operate a forklift himself.

On cross-examination plaintiff testified that he worked under a union contract which required drivers to 'assist as much as they possibly can on all freight' and that it was customary to assist in the unloading of heavy loads. But the actual union rules were not introduced in evidence.

Air-Hydraulics' defense, as set forth in its answer, was that the plaintiff was 'either a statutory employee of defendant, or an employee of defendant under the 'borrowed servant' doctrine,' and contributorily negligent. During the cross-examination of plaintiff, counsel for defendant asked Ferguson if he had a workmen's compensation claim. Counsel for plaintiff objected and a colloquy ensued out of the hearing of the jury.

Counsel for defendant offered to prove that the plaintiff, if permitted to answer, would acknowledge he had received benefits under workmen's compensation and that the evidence was necessary for the defendant to rely on its defenses of statutory employee or borrowed servant. 'In other words, if the jury finds that the plaintiff is either a borrowed servant or a statutory employee of the defendant, and that both the employee and the defendant were working under the provisions of the Missouri Workmen's Compensation Act, then the employee cannot maintain this action, because his remedies are exclusively under the Workmen's Compensation Act.' The offer of proof was that if permitted to put on the evidence, the defendant's evidence would show there was a contract to make delivery of the steel between Ryerson and Air-Hydraulics and that the plaintiff was carrying out the delivery for Ryerson. Once plaintiff gets to defendant's premises he has the duty to assist in unloading. The unloading is in the normal and usual work performed by the defendant company on their premises and plaintiff assisted in the defendant's normal and usual work of unloading, of which defendant has control, using defendant's equipment.

The court ruled as a matter of law that Ferguson was not a statutory employee or borrowed servant of the defendant and that any evidence related to his workmen's compensation claim was inadmissible. The court ruled that Ferguson was not a 'borrowed or contract employee' of the defendant company, but rather that he was a borrowed or contract employee of the Ryerson Steel Company.

Following the court's ruling on the offer of proof, the attorneys stipulated that the injury '. . . occurred on the premises of the defendant, that (it) was work normally done by the defendant; that he was there under a contract to deliver, and that, in addition to them being under the Comp Act.' The attorney for the plaintiff stipulated that 'if you were permitted to offer that in evidence, you could prove that.' The court accepted the stipulation.

Defendant's witnesses were unable to explain Ferguson's action of getting on the lift because at the time the wheels were all on the ground.

Motions for a directed verdict at the close of the plaintiff's case and at the close of all the evidence were overruled. Plaintiff submitted his case on primary negligence of failing to keep a careful lookout for his hand. The jury rendered a verdict for the plaintiff in the amount of $10,000. Defendant's motion after trial for judgment in accordance with its motion for a directed verdict, or in the alternative for a new trial, was overruled. Defendant perfected its appeal to this court.

The defendant-appellant urges that the trial court erred in overruling its motions for directed verdict, and makes two points on this appeal: (1) that the plaintiff Ferguson was contributorily negligent as a matter of law; and (2) that Ferguson was a statutory employee or borrowed servant of the defendant at the time and place of the injury and, therefore, his remedy is exclusively under the workmen's compensation law. Defendant urges the trial court erred in ruling that as a matter of law Ferguson was not a statutory employee or borrowed servant, and that this was a question for the jury. Respondent counters by urging that the issue of contributory negligence was for the jury and Ferguson was not a statutory employee or borrowed servant under the circumstances here.

In determining whether the trial court erred in overruling the defendant's motions for directed verdict and ...