Ossenfort v. Associated Milk Producers, Inc.

• Decision Date: 20 May 1977
• Docket Number: 46440,Nos. 46428,s. 46428
• Citation: 254 N.W.2d 672
• Parties: Lloyd H. OSSENFORT, by Eleanor M. Ossenfort, His Guardian Ad Litem, and Eleanor M. Ossenfort, Individually, and as Husband and Wife, Respondents, Nobles County Welfare Board, Respondent, v. ASSOCIATED MILK PRODUCERS, INCORPORATED, Appellant-Respondent. and Clifford VIESSMAN, et al., defendants and third party plaintiffs, Respondents- Appellants, v. Arthur G. DRENTH, third party defendant, Respondent.
• Court: Minnesota Supreme Court

Page 672

254 N.W.2d 672

Lloyd H. OSSENFORT, by Eleanor M. Ossenfort, His Guardian Ad

Litem, and Eleanor M. Ossenfort, Individually, and as Husband and Wife, Respondents, Nobles County Welfare Board, Respondent, v. ASSOCIATED MILK PRODUCERS, INCORPORATED, Appellant-Respondent. and Clifford VIESSMAN, et al., defendants and third party plaintiffs, Respondents- Appellants, v. Arthur G. DRENTH, third party defendant, Respondent.

Nos. 46428, 46440.

Supreme Court of Minnesota.

May 20, 1977.

Syllabus by the Court

1. The evidence was sufficient to raise a jury question as to whether defendant Clifford Viessman was an independent contractor or an employee of defendant Associated Milk Producers, Incorporated.

2. Having assumed the right and responsibility to instruct and supervise truck drivers hired by an employee to perform the employer's work, the employer will not be insulated by some technical obstacle from liability for a driver's negligence.

3. The trial court did not err in denying discovery of two statements of a party where no showing of substantial need and inability to obtain their substantial equivalent was made; and the trial court's error in denying discovery of the statement of a non-party witness was not prejudicial. Rule 26.02(3), Rules of Civil Procedure.

4. The trial court did not abuse its discretion in denying defendants' motion, made after commencement of trial, for an adverse medical examination.

5. The trial court did not abuse its discretion in admitting expert testimony of an economist to aid the jury in assessing the effects of inflation on plaintiff's future damages.

6. The damages awarded are not excessive.

7. Whether certain evidence should not have been admitted and closing remarks not allowed on the grounds that both impermissibly appealed to the jury's sympathies need not be decided where there was no evidence of negligence by the party on whose behalf the evidence was introduced and the closing remarks made.

8. The trial court did not abuse its discretion in denying a motion for new trial on the grounds of prejudicial misconduct by bailiff or jury.

Considered and decided by the court en banc.

Richard D. Allen, Minneapolis, for Assoc. Milk Prod.

Brecht, Hedeen & Hughes, Worthington, for Viessman et al.

Grose, Von Holtum, Von Holtum, Sieben & Schmidt, Clint Grose and David Stofferahn, Minneapolis, for Ossenfort.

Harris Darling, County Atty., Worthington, for Nobles Co. Wel. Bd.

Erickson, Zierke, Kuderer, Myster & Wilhelm and Charles R. Zierke, Fairmont, for Drenth.

PETERSON, Justice.

These are consolidated appeals from judgment for plaintiffs following a jury verdict for $1,500,000 damages in a personal injury action and from denial of defendants' motions for a new trial. We affirm.

Plaintiff Lloyd Ossenfort suffered organic brain damage and was rendered a spastic quadriplegic when a pickup truck in which he was a passenger collided with a bulk milk hauling truck at a controlled highway intersection on October 28, 1971. The milk truck was driven by defendant Gary Fehl, owned by defendant Clifford Viessman, and used in performance of Viessman's contract with defendant Associated Milk Producers, Incorporated (AMPI), to haul milk from farmer-producers in the Worthington, Minnesota, area who sold milk to AMPI. The collision occurred when defendant Fehl admittedly failed to stop at a stop sign which controls Nobles County Road No. 14, the road on which he was driving, where it intersects with Minnesota Highway No. 91, the road on which plaintiff Lloyd Ossenfort was traveling. Viessman and Fehl brought an action as third-party plaintiffs alleging negligence on the part of third-party defendant Arthur Drenth, driver of the pickup truck in which Ossenfort was riding.

The jury, by special verdict, found Fehl 100 percent negligent, exonerating Drenth of contributory negligence, a finding not now contested by Fehl. It found that Viessman was an employee of AMPI, thereby rejecting AMPI's argument that Viessman was an independent contractor. The jury awarded Ossenfort $1,000,000 and Eleanor Ossenfort, his wife, $500,000. The court ordered judgment in those amounts against Fehl, Viessman, and AMPI.

Individually or together, AMPI, Viessman, and Fehl assign numerous errors on appeal, including: Failure to direct a verdict in AMPI's favor on the grounds that Viessman was an independent contractor and not an employee of AMPI and, a fortiori, that Fehl was not an employee of AMPI; refusal to compel discovery under Rule 26.02, Rules of Civil Procedure; refusal to allow an adverse medical examination after commencement of trial; admission of an economist's testimony on the effect of inflation in computing future damages; excessive award of damages; and prejudicial misconduct of the jury or bailiff.

1. The first issue, central to AMPI's defense of this case, involves the relationship between AMPI and Viessman. The jury found that an employer-employee relationship existed between them, so that AMPI was vicariously liable for the negligence of Viessman and Viessman's truck driver, Fehl. AMPI had moved for a directed verdict at the close of plaintiffs' evidence on the grounds that plaintiffs had failed to raise a jury question as to that relationship; and at the close of all the evidence, AMPI again moved for a directed verdict, on the grounds that Viessman was an independent contractor. The court denied both motions. In deciding whether a motion for a directed verdict was properly denied, we consider all the evidence, including that introduced after denial of the first motion. See, In re Welfare of Fish, 288 Minn. 512, 179 N.W.2d 175 (1970). We hold that the evidence as a whole was sufficient to raise a jury question as to the employment relationship of Viessman and AMPI, and that the trial court did not err in denying either motion.

The most frequently cited test for distinguishing an independent contractor from an employee derives from Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964), where we said:

" * * * It is conceded that the factors applied in testing the relationship are: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. In determining whether the status is one of employee or independent contractor, the most important factor considered in light of the nature of the work involved is the right of the employer to control the means and manner of performance." (Italics supplied.)

In Corbin v. Commissioner of Revenue, Minn., 240 N.W.2d 809, 812 (1976), we reiterated the importance of the "control" factor, ¹ citing Frankle v. Twedt, 234 Minn. 42, 47, 47 N.W.2d 482, 487 (1951), which described the kind of "control" characteristic of an employer-employee relationship as distinguished from that characteristic of independent-contractor status:

" * * * The determinative right of control is not merely over what is to be done, but primarily over how it is to be done. Basically, it is the distinction between a person who is subject to orders as to how he does his work and one who agrees only to do the work in his own way."

The issue of employment status is one of fact. Hagberg v. Colonial & Pacific Frigidways, Inc., 279 Minn. 396, 157 N.W.2d 33 (1968). It is for the trier of fact to distinguish between the "right-to-control" characteristic of an employer-employee relationship and the fact of powerful influence not inconsistent with an independent-contractor relationship. Our function on appeal is to determine whether its finding may reasonably be supported by the evidence. Hagberg v. Colonial & Pacific Frigidways, Inc., supra. The parties cite numerous cases reaching different conclusions on this question, but each rests peculiarly upon its own factual configuration and none aid resolution of this case sufficiently to merit discussion. The evidence recited in the several next succeeding paragraphs, assuming it was all admissible, ² is sufficient to support the jury's verdict, notwithstanding that it might have decided the issue differently.

AMPI was organized in 1969 as the result of a long series of mergers between various dairies, including Western Dairy, Five Star Dairyland Cooperative (hereafter, Five Star), and Milk Producers, Inc. In January 1970, Viessman, who had operated a milk hauling business out of Worthington, Minnesota, from 1965 until 1969, began to haul for AMPI. He moved his business to Clarkfield, Minnesota, where an AMPI plant was located. He bought a garage where he could service his five trucks, and he bought from AMPI, which had some excess equipment for sale, two additional trucks and two tanks. He borrowed some of the money for this $45,000 transaction from AMPI and some from the Farmers Merchants State Bank, New Ulm, the bank with which AMPI did business. AMPI arranged the loan from the bank. At the time of this accident, Viessman owned seven or eight trucks. His name was carried on the doors of the cabs; AMPI's emblem was carried on the sides of the tanks.

AMPI assumed the contract under which Viessman had previously been hauling for Five Star. Viessman had not negotiated the contract with Five Star. He testified that his practices did not change in any way when he began to haul for AMPI. The contract, which was in effect the day of the accident, states that Viessman is an independent contractor for whose acts Five Star is not liable; that the contract for hauling is one between Viessman and the farmer-producers, Five Star's only obligation under it being to deduct from the farmers' accounts an amount equal to Viessman's charges; that Viessman shall supply trucks and tanks, and shall keep them clean; that Viessman will carry cargo insurance; that Five Star shall have no control over the time, manner, means, or method of Viessman's performance with...