Gambrell v. Kansas City Chiefs Football Club, Inc.

Decision Date30 January 1978
Docket NumberNo. KCD,KCD
Citation562 S.W.2d 163
PartiesWilliam GAMBRELL, Plaintiff-Appellant, v. KANSAS CITY CHIEFS FOOTBALL CLUB, INC., et al., Defendants-Respondents. 29288.
CourtMissouri Court of Appeals

H. George Lafferty, Jr., Kansas City, for plaintiff-appellant.

Thomas A. Sweeny, William J. Burrell, Kansas City, for defendants-respondents.

Before SHANGLER, P. J., WASSERSTROM, J., and MARTIN and CLARK, Special JJ.

WASSERSTROM, Judge.

The question for determination is whether plaintiff's present suit against his former employer for fraud and deceit is precluded by the Workmen's Compensation Act. The trial court held in the affirmative. We affirm.

Plaintiff, a professional football player, entered into negotiations to play for the Kansas City Chiefs Football Club, Inc. He reported for physical examination to the team doctors, Elfeldt and Miller, and those doctors reported him physically fit to play. A contract was signed between plaintiff and the Kansas City Chiefs on June 17, 1974.

On August 17, 1974, plaintiff received severe physical injuries when tackled in an exhibition football game with the Los Angeles Rams. He filed claim for that injury before the Missouri Compensation Commission in November, 1974, and he received an award in that proceeding in the sum of $5,250, which the Kansas City Chiefs paid on April 9, 1976.

During the pendency of the compensation proceedings, plaintiff filed the present lawsuit against the Kansas City Chiefs and Doctors Elfeldt and Miller. Count I alleged that sometime in July, 1974, Elfeldt and Miller conducted physical examinations of plaintiff on behalf of the Kansas City Chiefs to determine his physical fitness to play professional football and that as a result of those examinations they represented to plaintiff that his physical condition was good and that he was fit to play; that those representations were false in that plaintiff at that time was disabled as a result of prior injuries and those preexisting disabilities rendered him unfit to participate in professional football and would subject him to great risk of serious and permanent physical injury; that the defendant doctors and the defendant Kansas City Chiefs through them knew or should have known that the representations in question were not true; that the misrepresentations were material and made with the intent that plaintiff rely upon them and enter into a contract with and perform as a play for the Kansas City Chiefs; that plaintiff was ignorant of the falsity of those representations and he had a right to rely and did rely thereon. Count I further alleges that the injuries received by him in the Rams football game on August 17, 1974, either would not have occurred had he been physically fit or were much more severe in extent than he would have received had he been physically fit to play football. This count then proceeds to allege as follows:

"That as a direct and proximate result of the aforedescribed wrongful acts of the defendants, the plaintiff suffered an aggravation of a pre-existing injury in his back, neck, spine, and the muscles, tendons, nerves, vertebrae, tissues and blood vessels attached thereto and connected therewith. He suffered a severe and lasting shock to his central nervous system resulting in the loss of his natural rest and sleep. The plaintiff has suffered from great physical pain and mental anguish. The plaintiff will be required to undergo hospitalization and surgery in the future for the aforesaid injuries. The plaintiff has sustained a severe and permanent disability and can no longer participate in his profession as a football player nor can he participate in any other normal physical activity. The plaintiff has suffered a great loss of wages and will suffer a loss of wages in the future because of the aforesaid injuries."

Under Count I, plaintiff prayed actual damages of $250,000. Under Count II, he claimed punitive damages of $1,000,000. In Count III, he alleged conspiracy by the three defendants to make the misrepresentations referred to in Count I, for which he prayed actual damages of $250,000; and in Count IV, he prayed punitive damages on account of the conspiracy in the sum of $1,000,000. Count V claimed breach of contract against defendant Kansas City Chiefs alone in the sum of $19,642.81.

The Kansas City Chiefs filed separate answer and followed up with a motion for summary judgment on Counts I through IV, supported by documents reflecting all of the Workmen's Compensation proceedings. The Kansas City Chiefs urged in support of their motion that plaintiff's damages were all the result of an accidental injury covered by the Workmen's Compensation Act and for which he was fully compensated by the award of the Workmen's Compensation Commission, and that plaintiff's rights under the Compensation Act are exclusive under the provisions of Section 287.120. (All statutory references are to RSMo 1969). The trial court sustained that motion and made the judgment final for purposes of appeal under Section 512.020.

On this appeal, plaintiff attacks the judgment sustaining the motion for summary judgment on two fronts. He contends, first, that his claim in this case is not based on the accident of August 17, 1974, but rather upon the fraud and deceit which occurred earlier. He contends that it is only the claim for accidental injury which is barred and that his cause of action for fraud and deceit does not fall within nor can it be barred by the Workmen's Compensation Act. As his second contention, plaintiff says that a material issue of fact (namely whether he was an employee at the time of the medical examinations) remained unresolved, and for that reason summary judgment should not have been granted. 1

An appropriate starting point for a discussion of plaintiff's first and major proposition is the underlying philosophy of Workmen's Compensation legislation. This legislation rests on the foundation concept of the social desirability of giving employees a sure and speedy means of compensation for injuries suffered in the course of employment without the necessity of proving fault on the part of the employer. By way of exchange consideration to the employer, these Acts provide compensation in only a relatively modest amount and protect the employer by making that compensation exclusive of all other remedies. This latter consideration is reflected in Section 287.120 of the Missouri Act which provides that the employer shall furnish compensation under the Act "and shall be released from all other liability therefor whatsoever" and that "(t)he rights and remedies herein granted to an employee, shall exclude all other rights and remedies * * *."

This exclusivity, however, is qualified by a rule accepted in most jurisdictions that the Act bars common law suits for only those damages covered by the Act and for which compensation is made available under its provisions. This rule is followed in Missouri. Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193 (Mo.banc 1968). Thus, under this rule the employee is still free despite the Act to bring suit at common law for wrongs not comprehended within the Workmen's Compensation Act, such as false imprisonment and defamation. A considerable number of cases holding to this effect are collected in the annotation "Workmen's Compensation Provision as Precluding Employee's Action Against Employer for Fraud, False Imprisonment, Defamation, or the Like", 46 A.L.R.3d 1279.

Most of the cases relied upon by plaintiff fall in this category. Thus, Skelton v. W. T. Grant Company, 331 F.2d 593 (5th Cir. 1964) was an action for false arrest where the employee claimed damages for embarrassment and humiliation. Powers v. Middlesboro Hospital, 258 Ky. 20, 79 S.W.2d 391 (1935) was an action for false imprisonment where the employee alleged damages by way of fright, shock and physical pain and anguish. Braman v. Walthall, 215 Ark. 582 225 S.W.2d 342 (1949) was a suit for slander in which the employee alleged damages for mental anguish, humiliation and damage to reputation. In each of those cases cited by plaintiff, and others like them, the damages for which the employee sought recovery were other than (or at least only to a very slight extent) physical injuries to the body of the type intended to be compensated by the pattern of the Workmen's Compensation Act. See Larson's Workmen's Compensation Law, Sec. 68.30, p. 13-18.

The application of the rule just mentioned becomes much more difficult in a case by an employee for fraud and deceit where the plaintiff employee alleges that some fraud on the part of the employer interrelated with a bodily injury suffered by the employee in the course of his employment. Larson, a leading authority on the subject of Workmen's Compensation, discusses this problem at Section 68.32, p. 13-22, of his work where he cites and discusses decisions on this question from many jurisdictions and summarizes as follows:

"The cases involving allegations of deceit, fraud, and false representation can best be sorted out by distinguishing those in which the deceit precedes and helps produce the injury, and those in which the deceit follows the injury and produces a second injury or loss."

Representative of the latter class of cases, which are not precluded by the Workmen's Compensation Act, is Ramey v. General Petroleum Corporation, 173 Cal.App.2d 386, 343 P.2d 787 (1959), a case cited and relied upon by plaintiff in this case. In Ramey, the plaintiff employee was caused by misrepresentations to wait beyond the period...

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