Howard v. Winebrenner

• Decision Date: 10 September 1973
• Docket Number: No. 56927,No. 1,56927,1
• Citation: 499 S.W.2d 389
• Parties: Harold HOWARD, Appellant, v. Lloyd WINEBRENNER, Respondent
• Court: Missouri Supreme Court

Page 389

499 S.W.2d 389

Harold HOWARD, Appellant, v. Lloyd WINEBRENNER, Respondent.

No. 56927.

Supreme Court of Missouri, Division No. 1.

Sept. 10, 1973.

Rehearing Denied Oct. 8, 1973.

Albert J. Yonke, Kansas City, for appellant.

Warren D. Welliver and William A. Atkinson, Welliver, Beckett & Simon, Columbia, for respondent.

HIGGINS, Commissioner.

Appeal (taken prior to January 1, 1972) from order overruling plaintiff's motion for summary judgment, sustaining defendant's motion for summary judgment, and dismissing plaintiff's petition for $75,000 damages for personal injuries.

Plaintiff alleged: that defendant is the owner and operator of certain tractors and trailers and is in the business of hauling as a contract and common carrier; that on June 4, 1967, plaintiff was walking in an easterly direction in defendant's lot, when and where defendant, who was backing a tractor and trailer in an easterly direction, negligently caused and permitted the tractor-trailer to come into collision with plaintiff and, as a direct result, he suffered serious and permanent injuries.

Defendant, by alternate motion to dismiss or for summary judgment, alleged: that at the time of plaintiff's injury, plaintiff and defendant were subject to and operating under the Missouri Workmen's Compensation Law, Sections 287.010 to 287.800, RSMo 1969, V.A.M.S.; that at the time of his injuries, plaintiff was an employee of defendant and his injuries arose out of and in the course of his employment by defendant; that following the injury, defendant and his insurer became liable for and have paid compensation and medical benefits to plaintiff.

Plaintiff also moved for summary judgment, limited to the issue of the defense that plaintiff was an employee of defendant with his exclusive remedy in the Workmen's Compensation Act.

Both motions were submitted to the court, together with supporting affidavits, exhibits, and depositions of plaintiff, defendant, and Robert D. Scherff.

The decisive question is whether an employee-employer relationship existed between plaintiff and defendant at the time of plaintiff's injury. Plaintiff states: '* * * there is little dispute on the facts and the parties agreed that * * * whether * * * plaintiff's action is barred by reason of plaintiff's coming under the Workmen's Compensation Law may be decided on the facts contained in the depositions, affidavits and exhibits.'

The undisputed facts as plaintiff states them follow:

'Plaintiff worked for the defendant in 1961 for about a year and for about six months after he got out of the army in 1964. After that he owned a tavern, worked at Ralston-Purina for over a year and drove a cement truck on construction in Kansas City. He drifted around some but did not go back to work for the defendant. In June, 1967 when he was injured he was waiting for a call to go to work on construction in Kansas City. Whenever defendant would call him and he felt like it and was available he would take an occasional trip for the defendant. When he drove, plaintiff drew 20% and defendant drew 80% of what defendant was paid or what defendant received. Between January and July, 1967 plaintiff made two to four trips for defendant to St. Louis and Kansas City.

'On Sunday afternoon (June 2, 1967) defendant called plaintiff and asked if he wanted to pull a load of livestock to St. Louis Monday night; plaintiff agreed to do so. The usual rate of compensation was to apply. * * * Plaintiff did not take the trip to St. Louis as defendant had asked him to because defendant had received a call from Scherff Truck Lines and defendant gave plaintiff the choice of taking the trip for him (defendant) or for Scherff. This choice was given plaintiff when he came to defendant's lot to haul the cattle about 5:00 p.m. Monday. * * * Plaintiff parked his car on the east side of the lot facing in to the fence. * * * Plaintiff had run a few trips for Scherff in 1959 and 1960, the last one being in 1960. He had not worked for Scherff from 1960 to 1967. Plaintiff told defendant he would run for Scherff because it was cleaner. He was supposed to pull a trailer to Kansas City and back for Scherff. There was no discussion between plaintiff and defendant about how he would be paid but plaintiff figured Scherff would pay him because that is the way they paid the leased drivers. There was no definite time set for him to leave but it was to be Monday afternoon, and he was to be hauling freight. There was no conversation with defendant about the trip and defendant was to take the trip to St. Louis with the livestock. Plaintiff drove the twin screw tractor. The conversation with defendant lasted five to ten minutes and then plaintiff went to Scherff's home office in California, Missouri in defendant's tractor.

'When he got to Scherff's he put a bunch of lease signs on the truck (tractor) which he got from Bob Scherff. He then hooked on to an empty trailer, pulled it to Sedalia, dropped it, picked up another one and went to Kansas City. He left the trailer at Scherff's dock and picked up a loaded trailer and pulled it back to Sedalia. He had been given a list at Scherff's home office with the trailers he was to haul. In Sedalia he dropped the trailer, hooked on to another Scherff trailer, pulled it to Scherff's Kansas City dock, picked up another trailer and pulled it back to California, Missouri. When he arrived at Scherff's lot in California about 7:00 a.m. he went to the dock to see where they (Scherff) wanted the tractor (trailer) dropped. He was told to back it up to the dock; he unhooked it and they (Scherff's employees) told him to take the tractor back to defendant in Clarksburg. He then took the tractor to defendant's place; when he got there he spoke a few words to defendant in front of the gas pumps, crawled out of the truck after gathering up his clothes and papers, went around in front of the truck, down the right side of the truck and headed for his car. The truck was parked headed west by the gas pumps. Plaintiff was walking east, heard the truck start up and was struck by it. While defendant gassed the truck two of them talked. Defendant asked him if anything was wrong with the truck. Plaintiff did not have anything to do with gassing the truck and when he got out he said he was going home and went around in front of the truck. Plaintiff was first struck in the foot and then knocked face down in the dirt and run over by the tractor, which defendant was personally operating.

'About ten minutes elapsed from the time plaintiff pulled up to defendant's station and the time the accident happened. During this time they were discussing the mechanical devices on the truck and that it was ready to go on a run. Defendant states that they also discussed another trip being available. The motor was not running and plaintiff left the keys in the engine.

'Plaintiff has not worked for defendant since that time. He was paid by defendant 20--80 for that particular trip. He was not paid anything by Scherff. This was the only time he had pulled anyone else's trailer with defendant's tractor. If he had been working for defendant he would have gassed the truck himself.

'Scherff gave plaintiff his orders, told him which way to go, and not to drive over ten hours. He had no instructions from defendant not to drive over ten hours. Scherff told him to drive carefully, within the speed limit and not to tear up the truck. Scherff told him to go to Kansas City after putting signs with Scherff's name on the truck (tractor) which he did. In case of a breakdown plaintiff would have called Scherff. Before he left defendant's place, defendant gave him no instructions at all on what route to follow. Defendant did not tell plaintiff which route to drive; defendant furnished the fuel. According to defendant, in case of an accident plaintiff would have called Scherff and defendant; but only defendant in case of a breakdown. Defendant did not tell plaintiff what time to be back. It is Scherff's decision what to do with the tractor (trailer) and all Scherff did was lease defendant's tractor and pay so much a mile. Scherff had the right to turn down a driver. Plaintiff would have had to pay his own meals because he was on a straight percentage. Defendant paid bridge tolls. Scherff's sign covered defendant's name on the doors. It is customary for the drivers to follow Scherff's instructions. Plaintiff was not obliged to take either job and defendant just asked him. If a driver got drunk it would be up to Scherff to order him out of the truck although if defendant caught him he would do so himself.

'Plaintiff filed no Workmen's Compensation claim as a result of the accident. His medical expenses were paid and he drew some weekly checks but the checks did not state what they were for. He received no forms or communication from the Division of Workmen's Compensation.

'On some occasions when plaintiff drove defendant's trucks he was paid in cash. The only way he was ever paid by defendant was on a 20--80 basis. Defendant offered him a regular job on the night he left for Scherff's at a salary of $100.00 per week but plaintiff refused the job because he was going to work on construction. Defendant remembers making such an offer but it may have been the next morning. Plaintiff knows of some truck leases that lease the truck without the driver and he has no knowledge of the lease agreement with Scherff. Plaintiff assumed that Scherff would pay him. On this particular trip he does not recall getting a W--2 form from defendant but he did get one at the end of the year. He did not get a W--2 form from Scherff.

'Defendant is a livestock dealer and trucker. In 1967 he operated two tractors and three trailers but did not have a P.S.C. permit. On June 5--6, 1967 he had two full-time employees who worked forty hours a week--one on a weekly salary and one on a 20% of gross revenue. Defendant does not have the particular lease agreement that should...