Kelley v. DeKalb Energy Co., 075757

Citation865 S.W.2d 670
Decision Date23 November 1993
Docket NumberNo. 075757,075757
PartiesProd.Liab.Rep. (CCH) P 13,722 Jerry KELLEY, Appellant, v. DeKALB ENERGY COMPANY, et al., Respondents.
CourtUnited States State Supreme Court of Missouri

Dennis P. Wilson, C.H. Parsons, Jr., Dexter, for appellant.

Jeffrey P. Hine, Cape Girardeau, for respondents.

BENTON, Judge.

DeKalb AgResearch, Inc.--a predecessor to Defendant DeKalb Energy Company--employed Plaintiff Jerry Kelley at its Sikeston facility. In 1980, DeKalb built "corn flamers" by mounting flame-making machines on tractors, for the purpose of flaming corn plants just enough to retard their growth.

On July 15, 1982, DeKalb AgResearch and Pfizer Genetics, Inc., spun off DeKalb-Pfizer Genetics, a general partnership. As part of the partnership agreement, DeKalb-Pfizer obtained ownership of the Sikeston facility and its corn flamer. Kelley continued as a partnership employee.

On June 11, 1984, the corn flamer exploded, severely burning Kelley. The partnership settled Kelley's workers' compensation claim. Kelley then sued DeKalb Energy Company and five employees asserting negligent design, manufacture and construction of the corn flamer. The trial court granted summary judgment for all defendants. After opinion by the Court of Appeals, this Court granted transfer. Affirmed.


A partnership is an "employer" under workers' compensation law. § 287.030 RSMO 1986. Under Missouri's version of the Uniform Partnership Act, a partnership is not a legal entity separate from the individual partners. Scott v. Edwards Transportation Co., 807 S.W.2d 75, 81 (Mo.banc 1991); Chap. 358, RSMo 1986. An employee of a partnership is an employee of each individual partner. Anderson v. Steurer, 391 S.W.2d 839, 843 (Mo.1965); Griffin v. Doss, 411 S.W.2d 649, 651 (Mo.App.1967); Rhodes v. Rogers, 675 S.W.2d 107, 109 (Mo.App.1984). However, the converse is not necessarily true; an employee of an individual partner is not necessarily an employee of the partnership. See Crall v. Hockman, 460 S.W.2d 668, 672 (Mo. banc 1970).

The workers' compensation law excludes common law actions by employees against their employers for accidental injuries arising out of and in the course of employment. § 287.120 RSMo 1986. Thus, a partnership employee may not sue a partner where there is workers' compensation coverage. Anderson, 391 S.W.2d at 843; Scott, 807 S.W.2d at 80; Ballinger v. Gascosage Electric Co-op, 788 S.W.2d 506, 515 (Mo. banc 1990).

Kelley relies on the holding in the Crall case. There, an employee setting tile at a partner's residence was permitted to sue that partner, avoiding the partnership's workers' compensation protection, because the partner acted as a separate employer. The partnership was a separate employing entity with no connection to the separate work. Crall, 460 S.W.2d at 672.

Kelley's case is different. In order to be confined to the remedies of workers' compensation, the employee must be working within the scope of the covered employer's business. Id. Kelley is confined to the remedies of workers' compensation because his injury occurred while performing work within the scope of the DeKalb-Pfizer partnership business.

Kelley contends that defendants' negligence occurred in 1980 when the corn flamer was originally constructed, before the partnership existed. Kelley believes this timing implicates a separate business (DeKalb Energy) distinct from the partnership business (DeKalb-Pfizer). "The controlling fact in establishing the exclusiveness [of workers' compensation remedies] is the relationship of the parties at the time of occurrence of the injury. Their relationship at other times, such as the time of employer's misconduct or the time of bringing the suit, is immaterial." 2A Arthur Larson, Workmen's Compensation § 65.13 (1993). Therefore, defendant DeKalb, as a partner, was Kelley's employer at the time the injury occurred and was released from all other liability except workers' compensation.

To allow recovery against defendant DeKalb under these facts is contrary to the workers' compensation law. The circuit court properly granted summary judgment as to defendant DeKalb.


The circuit court also granted summary judgment to five fellow employees who directly participated in the design, manufacture, or construction of the corn flamer.

When considering appeals from summary judgments, this Court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This Court also accords the non-movant the benefit of all reasonable inferences from the record. Id. The five defendants thus must show that there is no genuine dispute as to material facts, and that they are entitled to judgment as matter of law. Rule 74.04(c); ITT Commercial Finance Corp., 854 S.W.2d at 380.

The employer has a nondelegable duty to provide a reasonably safe place to work. Tauchert v. Boatmen's National Bank, 849 S.W.2d 573, 574 (Mo. banc 1993); Bender v. Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 406 (1925); State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 177 (Mo.App.1982); J.M.F. v. Emerson, 768 S.W.2d 579, 581 (Mo.App.1989). Suits for breach of...

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