Lyon v. J.E. Dunn Const. Co., WD

• Decision Date: 30 April 1985
• Docket Number: No. WD,WD
• Citation: 693 S.W.2d 169
• Parties: George S. LYON and Mildred May Lyon, Plaintiffs-Respondents, v. J.E. DUNN CONSTRUCTION COMPANY, Defendant-Appellant. 36023.
• Court: Missouri Court of Appeals

Page 169

693 S.W.2d 169

George S. LYON and Mildred May Lyon, Plaintiffs-Respondents, v. J.E. DUNN CONSTRUCTION COMPANY, Defendant-Appellant.

No. WD 36023.

Missouri Court of Appeals Western District.

April 30, 1985.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled

and Denied July 2, 1985.

Application to Transfer

Denied Aug. 7, 1985.

James H. Ensz, Kansas City, for defendant-appellant.

Stephen R. Gleason, Kansas City, for plaintiffs-respondents.

Before LOWENSTEIN, P.J., and NUGENT and BERREY, JJ.

BERREY, Judge.

J.E. Dunn Construction Company, appellant, appeals the judgment in favor of George S. and Mildred May Lyon, respondents. The "total damages" awarded by the jury were for the amounts of $13,500.00 for personal injuries, and $4,000.00 for loss of services, respectively. The jury assessed the percentage of fault at 70% on the part of George in verdict form A, and 60% on the part of George in verdict form B. The circuit judge reduced the total damages in accordance with the assessed fault and entered judgment in the amounts of $4,050.00 and $1,600.00. Upon motion by respondents which included an affidavit by the jury foreman, and after a hearing on the motion, the circuit judge amended the original judgment on the basis that it did not reflect the intention of the jurors. Total damages were increased to $45,000.00 and $10,000.00, the fault percentages were applied, and final judgment was entered in the amount of $13,500.00 and $4,000.00. Mildred Lyon's recovery is contingent upon a ruling in favor of George Lyon, therefore, respondents will be referred to as a single respondent for part of this opinion.

Appellant alleges three points of trial court error. Under the first two, appellant claims the court should have sustained a motion to direct the verdict because respondent George Lyon was a "statutory employee" of appellant pursuant to the Missouri Workers' Compensation Act, § 287.040, RSMo 1978, and was thereby precluded from initiating a cause of action in common law or because there was no substantial evidence presented at trial showing the damages were caused by negligence of the appellant. In the event of adverse rulings on the aforementioned points, appellant claims the trial court erred by increasing the amount of damages awarded by the jury after the jury was discharged and requests reinstatement of the original verdict.

Disposition of appellant's first point is controlled by resolution of the following question: Where a general contractor contracts with a supplier for the sale and delivery of concrete to the site of a building under construction, is the employee of the concrete company, as the actual delivery man, to be considered a statutory employee of the general contractor for the purpose of § 287.040, RSMo?

The facts relevant to this particular issue are admittedly undisputed, the only question being whether the facts give rise to statutory employment.

Respondent's employer, Houseman Ready-Mix, was the successful bidder for the supply of concrete which was to go into a building being constructed by appellant. Respondent delivered the Houseman Ready-Mix concrete, in a truck owned by Houseman Ready-Mix, to the building site. He backed the truck to appellant's cement pump, then got out of the truck and pulled a lever to unload the cement into the hopper, a part of appellant's pump. After a minute or two, the pump became clogged and as appellant's employee attempted to unplug the pump, a pipe came loose from the pump striking respondent in the back.

Before an employee can be held a statutory employee under § 287.040.1, the evidence must show (1) the work being performed was under contract, (2) the injury occurred on or about the premises of the alleged statutory employer, and (3) at the time of the injury, the employee was engaged in work which was an operation of the usual business of the alleged statutory employer. Wallace v. Porter DeWitt Construction Company, 476 S.W.2d 129, 131 (Mo.App.1971). If respondent was a statutory employee of appellant, then his exclusive remedy would be under Workers' Compensation Law. In the instant case the existence of the first two elements is clear. Appellant and Houseman Ready-Mix agreed that concrete was to be delivered to the construction site, and respondent was on appellant's premises when the injury occurred. The dispute arises when we consider whether appellant was engaged in work which was an operation of the usual business of the employer.

Each case is determined upon its own particular facts as there is no "litmus paper" test for determining what particular work is within the scope of the operation of usual business. Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 135-36 (Mo.App.1973). In overruling appellant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, the trial court concluded that the operation of the usual business of J.E. Dunn Construction Company did not include delivery of concrete. Appellant counters with the notion that the usual business of appellant includes the "providing of all labor and materials necessary to the construction of commercial buildings, a significant element of which is concrete." Wallace v. Porter DeWitt Construction Company, supra, thoroughly discusses the insensibility of relying on any single rule purporting to govern any given situation and suggests that the more rational approach would be to "turn to a faithful application of the statute, as written and intended, by recognizing the real roles and relationships of the parties." Id., at 134. We conclude that in the instant case, appellant's business was in part to purchase and obtain materials necessary for construction and respondent's employer's business was to sell and deliver a portion of those materials, to wit: concrete. The cases cited by appellant are clearly distinguishable and warrant no discussion.

Appellant's first point is denied.

Appellant next claims the jury verdicts should have been directed because there was no substantial evidence presented at trial that respondent's injuries were caused by appellant's negligence. In determining whether or not substantial evidence was presented, this court must view the evidence in the light most favorable to the plaintiff-respondent, in whose favor the verdict was rendered, accept as true all evidence of the respondent which is not entirely unreasonable, and give the respondent the benefit of all favorable inferences. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 538 (Mo. banc 1977).

Respondent herein sought to prove there was a defective coupling on appellant's concrete pump and as a result the pump was not reasonably safe, and that appellant knew or could have known of the condition by use of ordinary care, but failed to use ordinary care to either correct the condition or warn respondent.

The evidence shows respondent was struck by a pipe which had come loose from the pump at a junction where a coupling was located. John Dickson, the only eyewitness and an employee concrete truck driver of Houseman Ready-Mix, testified the coupling "came loose" or "failed" and the pipe had to have come loose from the coupling. He did not know whether the coupling had broken or whether the failure had something to do with the adjustable tension clamp. Dickson also testified that in August of 1977, that particular pipe had no safety chain and about half the pumps to which he hauled concrete had safety chains to control how far the pipe could travel.

Paul Sparks, the concrete pump operator, a past employee of appellant, testified on direct examination that the coupling was the most troublesome part of the pump. He said the coupling had to be replaced at least every two months. When that part wore out or broke, there were no warning signs, such as oozing concrete. Sparks was also struck by the pipe at another construction site, St....