Green v. Crunden Martin Mfg. Co., 39433
| Decision Date | 27 December 1978 |
| Docket Number | No. 39433,39433 |
| Citation | 575 S.W.2d 930 |
| Parties | Clifford F. GREEN, Plaintiff-Respondent, v. CRUNDEN MARTIN MANUFACTURING COMPANY, Defendant-Appellant. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Robert C. Ely, Ely & Wieland, St. Louis, for defendant-appellant.
James F. Koester, David L. Baylard, St. Louis, for plaintiff-respondent.
Appellant, Crunden-Martin Manufacturing Company, appeals from a judgment favorable to Respondent, Clifford Green, in which the latter was awarded $50,000 in damages.
This civil action stemmed from Green's injury on appellant's premises. Clifford Green was a professional truck driver, employed by the Hamill Transfer Company. Hamill had orally contracted to supply Crunden Martin with truck drivers. On the day Green was assigned to work for the appellant, a steel door fell on his head and shoulders while he was assisting in the loading of his truck. Green brought this suit to recover for damages to his head, neck, brain, spine, right arm, right eye and hearing, allegedly suffered as a result of appellant's negligence.
The first issue raised in this appeal by Crunden Martin is that the trial court erred in overruling its motion for judgment at the close of all the evidence, for the reason that at the time of the accident, Green was a statutory employee of appellant. If Green is determined to be a statutory employee within the provisions of RSMo § 287.040, this common law action could not be maintained against Crunden Martin, for his exclusive remedy would be under the Workmen's Compensation Act. Walton v. United States Steel Corporation, 362 S.W.2d 617 (Mo.1962).
Our review of whether the trial court erred in overruling appellant's motion for a directed verdict consists of construing all evidence and inferences therefrom in the plaintiff's favor, and determining whether a submissible case has been made. Young v. Mercantile Trust Company National Association, 552 S.W.2d 247 (Mo.App.1977).
Categorization as a statutory employee is contingent on the coexistence of the following factors: 1) the work being performed is pursuant to contract, 2) the injury or death was inflicted on or about the premises of the alleged statutory employer, 3) the work performed by the alleged statutory employee must be that which is in the operation of the usual business of the alleged statutory employer. § 287.040, RSMo. All three factors must be present before an employee is held to be a statutory employee. Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 135(5) (Mo.App.1973).
As appellant has interposed the affirmative defense that Green was a statutory employee, appellant has the burden of pleading and proving this issue. Miller v. Municipal Theatre Association of St. Louis, 540 S.W.2d 899 (Mo.App.1976).
Among the factors to be taken into consideration in a determination of whether a worker is a statutory employee within the language of § 287.040, RSMo are: the right of the employer to control the employee, the right of the employer to replace one employee with another, and whether the work performed for the employer is merely incidental, rather than in actual furtherance of the usual course of his business. Ferguson v. Air-Hydraulics Company, Supra.
In order to resolve this issue within the framework of our standard of review, it is necessary to consider the phases of the Crunden Martin operation. The testimony adduced at trial from appellant's traffic manager, revealed that the company is engaged in manufacturing and distributing. Appellant does not own any trucks, but leases trucks for its driver employees to operate interstate.
The oral agreement which existed between Crunden Martin and the T. J. Hamill Transfer Company provided that the latter would select and supply the appellant with a truck driver every day. Hamill drivers would furnish their own trucks. Once assigned to the job, the driver's activities were controlled by Crunden Martin. If a breach of duty occurred during the driver's assignment to Crunden Martin, the latter could request that the driver not be reassigned to its operation again. Hamill Transfer, rather than Crunden Martin, had the right to fire a driver. Hamill paid the drivers who were assigned daily to Crunden Martin, withheld federal taxes, paid unemployment insurance and social security payments.
As phrased in appellant's brief, the focal point of our inquiry is whether Green's activity, loading and/or trucking, was within the usual course, or ancillary to, appellant's business. Walton v. United States Steel Corporation, Supra, cited by the respondent, is persuasive on this issue. The plaintiff therein, a truck driver, was assigned by his employer to make deliveries for the defendant. As in the case at bar, the plaintiff was injured on defendant's premises, during the loading stage. In reaching the issue of whether the plaintiff was involved in the usual course of defendant's business, the Court in Walton stated: "the mere fact that delivery of defendant's products by someone else was essential to its operation does not mean that such delivery service must be considered in the operation of defendant's usual course of business." 362 S.W.2d 617, at 624.
Like the defendant in Walton, the appellant did not prove that the activity performed by Green was in the usual course of its business.
Our review of the transcript and briefs reveals that the only provision of § 287.040 which is satisfied by the present set of facts is that which...
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