Greiser v. Western Supplies Co.

• Citation: 406 S.W.2d 13
• Decision Date: 11 July 1966
• Docket Number: No. 51467,No. 1,51467,1
• Parties: Frank J. GREISER, Respondent, v. WESTERN SUPPLIES COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

Page 13

406 S.W.2d 13

Frank J. GREISER, Respondent, v. WESTERN SUPPLIES COMPANY, Appellant.

No. 51467.

Supreme Court of Missouri, Division No. 1.

July 11, 1966.

Motion to Modify and for Rehearing Denied Sept. 12, 1966.

Edward Fredrickson, St. Louis, for respondent.

M. E. Stokes, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.

HIGGINS, Commissioner.

Action for damages for personal injuries in which defendant appeals from verdict and judgment for plaintiff for $50,000.

Plaintiff's petition, based on the doctrine of res ipsa loquitur, alleged an explosion which caused his injuries. Defendant's answer admitted the explosion, plaintiff's injuries, and defendant's corporate status and ownership of the building when the explosion occurred. Defendant also pleaded the affirmative defense that plaintiff was a statutory employee of defendant making the Workmen's Compensation Law plaintiff's exclusive remedy. Plaintiff's reply admitted that defendant was a major employer under the Law and that plaintiff and defendant were under the Law, but denied that the injury arose by accident occurring in connection with employment of plaintiff by defendant and that the remedies provided by the Law were exclusive.

The explosion which injured plaintiff occurred February 26, 1962. Plaintiff at that time had been employed for eight years by Pinkerton's National Detective Agency, Inc., as a security guard, and during the last three years of his employment had been assigned to defendant. Pinkerton paid his wages, withheld his taxes, furnished him a gun and badge, supplied him with uniforms and emblems, told him when and where to work, and gave him written instructions on his duties while assigned to the plant occupied and controlled solely by defendant at 2920 Cass Avenue, St. Louis, Missouri. Western Supplies Company was engaged in making shoe machinery and cutting dies used by the shoe industry. The main floor of its building was practically all manufacturing space. A partial second floor housed office facilities and a partial basement was used for a boiler and utility room. The boiler room contained a furnace and boiler for heating the plant, a gas water heater and a gas compressor which built up the pressure of natural gas as it came from the supplier's mains for use in the ovens and furnaces which were used to harden steel dies. There were fenced parking lots at the sides of the building.

Defendant and Pinkerton had an agreement under which Pinkerton furnished protection service to defendant for a fee, and under that contract, plaintiff was assigned to perform duties on the 12 midnight to 7:00 A.M. shift six days per week. Plaintiff's usual procedure was to relieve a Mr. Kreiger, a watchman employed directly by Western on the prior shift. Plaintiff would receive the time clock from Mr. Kreiger, let him out the gate, lock it behind him, and then commence his rounds which included six stations. Station No. 1 was the office where he would see that all lights were out, water turned off, and doors and windows secured; station No. 2 was the factory office on the first floor where he checked the tool crib and maintenance cage; station No. 3 was a quonset hut on the parking lot where he checked the gate and building security; station No. 4 was another office check; station No. 5 was the boiler room where plaintiff checked the boiler gauges and water level and saw that the compressor was off; station No. 6 was in the plating department where the heat-treating furnaces and chemical vats were located. He 'punched' each of these stations into the time clock on each hourly round. It took ten to fifteen minutes to make a round. Plaintiff had additional duties on his 5:00 A.M. round of admitting the milkman and opening the lot gates and plant doors so the day shift employees could enter. He also had additional daily duties on his 4:00 A.M. round. When he got to the boiler room, station No. 5, he would fill an oil cup on the side of the gas compressor, turn a valve to let gas into the compressor and another to let gas into a storage tank. He would wait until the gas pressure rose to 25 pounds and then go upstairs to station No. 6 and light the heat-treating furnaces with a gas torch provided for that purpose by Western. He would first light the torch, then open a gas valve on each furnace and apply the torch to the furnace. There were some electrical controls on the furnaces and a part of plaintiff's job was to manipulate them in a manner which kept the furnaces at a certain temperature. Plaintiff would not light all the furnaces every day. On some occasions some of the furnaces would have written notes left on them by Western employees telling him not to light those furnaces. Also on occasion plaintiff would remove metal from the furnaces at the request of Mr. Kreiger. This operation would arise if the metal had not cooled sufficiently for Kreiger to remove it before he left and it had to be done before the furnaces could be lighted. It was necessary for the furnaces to be lighted on the 4:00 A.M. shift in order for those who worked at the furnaces on the day shift to start at the regular time. There was also a special procedure to follow if a bell on the furnace rang, in which case plaintiff was to shut off the gas and pull a switch.

On February 26, 1962, plaintiff completed his 4:00 A.M. round. He started the gas compressor in the boiler room and then went upstairs and lighted the furnaces. As he passed the opening to the boiler room on his way to the office he heard a 'foreign' noise and went downstairs to investigate. He checked the water gauge on the boiler and turned to check the pressure gauge. At that time an explosion occurred and the next thing plaintiff remembered was being at the telephone asking for police and fire departments. Plaintiff did not know what exploded. During the six months preceding the explosion, plaintiff reported to defendant that he had smelled gas in the boiler room on three or four occasions. He did not smell any gas on the occasion of the explosion and did not know of any trouble in the boiler room before the explosion. An expert gave his opinion that a natural gas explosion occurred.

Appellant says that the court erred in submitting the case to the jury and in failing to sustain his motions for directed verdict and for judgment after verdict because 'plaintiff was an employee of defendant within the meaning of the Workmen's Compensation Act of the State of Missouri. All of plaintiff's work including the security measures and duties involving turning on machinery, lighting furnaces and checking temperatures and pressures were part of the usual business of defendant * * *.' Respondent joins the issue saying that 'plaintiff, an employee of Pinkerton National Detective Agency, Inc., an independent contractor, was not a 'statutory employee's of the defendant under the provisions of § 287.040, V.A.M.S., and was therefore entitled to maintain a common law action against defendant because fair-minded men could conclude from the evidence that the work being performed by plaintiff was not an operation of or in the usual course of defendant's business but was merely incidental, ancillary or auxiliary thereto; the trial court properly submitted this question * * * and the jury resolved the issue in plaintiff's favor.'

Section 287.040, V.A.M.S., of the Workmen's Compensation Law 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 to killed on or about the premises of the employer while doing work which is in the usual course of his business,' and Section 287.120, V.A.M.S., provides: 'The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee * * * at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.'

In determining whether one is a statutory employee under Section 287.040, V.A.M.S., it has been declared that "If the work being done at the time of injury is not an operation of, or in the usual course of, the business which the employer customarily carries on upon his premises, but is only incidental, ancillary, or auxiliary thereto, then'--the contractor or his employee is not a statutory employee.' State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838, 824(2). "* * * there is no infallible test. Each case presents its own * * * particular facts. " Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 622(3), quoting Viselli v. Missouri Theatre Bldg. Corp., Mo., 234 S.W.2d 563, 566(1). 'The defense that plaintiff was a statutory employee and hence could not maintain an action at common law is an affirmative one and the burden of pleading and proving that defense rests upon the defendant,' and in determining whether the court erred in failing to direct a verdict for defendant it is the rule that a "court should never withdraw a question from the jury, unless 'all reasonable men,...