Peer v. MFA Milling Co.

• Decision Date: 26 February 1979
• Docket Number: No. 10116,10116
• Citation: 578 S.W.2d 291
• Parties: Louise PEER, Plaintiff-Appellant, v. MFA MILLING COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 291

578 S.W.2d 291

Louise PEER, Plaintiff-Appellant, v. MFA MILLING COMPANY, Defendant-Respondent.

No. 10116.

Missouri Court of Appeals, Southern District, En Banc.

Feb. 26, 1979.

Charles C. Shafer, Jr., Kansas City, for plaintiff-appellant.

Raymond E. Whiteaker, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent.

FLANIGAN, Chief Judge.

Plaintiff Louise Peer is the widow and sole survivor of Paul J. Peer who died December 2, 1971. Plaintiff instituted this action in the Circuit Court of Greene County against defendant MFA Milling Company, her husband's employer. The petition alleged, in part, that the decedent "did suffer injury and/or death" in the course of his employment, that he was exposed to "highly toxic dangerous and poisonous drugs, chemicals, and substances, including the fumes, gases and dust therefrom," and that his death "was a direct and proximate result" of defendant's conduct. Defendant's answer denied those allegations.

The petition pleaded alternative theories of recovery. The theories included failure to provide a safe place to work, failure to provide certain equipment, negligence in failing to conduct certain tests, and certain statutory violations.

The trial court sustained a motion for summary judgment filed by defendant and entered judgment in favor of defendant on all counts of the petition. Plaintiff appeals.

The provisions of Rule 74.04 ¹ include: "(b) A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. (c) . . . The adverse party prior to the day of hearing may serve opposing affidavits. Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law . . . (h) In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law."

In determining whether the trial court erred in entering summary judgment in favor of the defendant this court must view the record in the light most favorable to the plaintiff. Otto v. Farmers Ins. Co., 558 S.W.2d 713, 715(1) (Mo.App.1977); Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328, 331(1) (Mo.App.1977). Summary judgment is a drastic remedy, Seliga, supra, 558 S.W.2d at 331. A "genuine issue of fact" exists, precluding the rendition of summary judgment, when there is the "slightest doubt" as to the facts, Pagan v. City of Kennett, 427 S.W.2d 251, 252(3) (Mo.App.1968); Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), so long as the fact in doubt is a material one which has "legal probative force as to a controlling issue." Seliga, supra, 558 S.W.2d at 331.

As one leading authority has pointed out, "Although a motion for summary judgment . . . may be made in any civil action, it is not commonly interposed, and even less frequently granted, in negligence actions." Wright and Miller, Federal Practice and Procedure, Vol. 10, § 2729, p. 559. Our supreme court has evinced a pronounced reluctance to affirm the granting of summary judgment relief to a tort defendant. See, for example, Blackburn v. Swift, 457 S.W.2d 805 (Mo.1970); Cooper v. Finke, 376 S.W.2d 225 (Mo.1964). However, in the rare situation where the exacting requirements of Rule 74.04 are met, the relief is available in a tort action. Examples of situations where a tort defendant successfully interposed, by resort to summary judgment, the shield of the occupational disease portions of the Missouri Workmen's Compensation Law may be found in King v. Monsanto Chemical Company, 256 F.2d 812 (8th Cir. 1958) and Oggesen v. General Cable Corporation, 273 F.2d 331 (8th Cir. 1960).

Defendant's motion for summary judgment was based on these grounds: "That decedent, plaintiff, and defendant at all times material herein, came within the provisions of and were subject to the Workmen's Compensation Law," including "the occupational disease amendment"; that paragraphs 3, 4, and 5 of Count I of the petition, if true, showed that "decedent died as a result of an occupational disease" and that plaintiff's sole remedy, "if any," is under the terms and provisions of the Workmen's Compensation Law. ²

" The compensation act, including the occupational disease amendment where applicable, is not supplemental or declaratory of any existing rule, right or remedy, but creates an entirely new right or remedy and where the employer and employee have elected to accept the provisions of the act such new right or remedy is wholly substitutional in character and supplants all other rights and remedies, at common law or otherwise." Marie v. Standard Steel Works, 319 S.W.2d 871, 875(3) (Mo. banc 1959). "It has been firmly established that the question as to whether or not the Workmen's Compensation Act, § 287.010, et seq., is applicable to a claim for which recovery is sought in a common law action is an affirmative defense and the burden of establishing same rests upon the defendant." Roberts v. Epicure Foods Company, 330 S.W.2d 837, 839(1) (Mo.1960). In Roberts, at p. 840, the court pointed out that when a defendant in a tort action relies upon the affirmative defense that the cause is barred by the workmen's compensation act, "(t)hat question is ordinarily a highly contested fact issue to be determined from conflicting oral testimony."

When a tort defendant relies upon this affirmative defense it frequently happens that the supporting evidence adduced by the defendant is of the quality which would aid the employee, and damage the same defendant, if a claim were being made under the compensation act. That fact may explain the vagueness to which both sides have resorted in the case at bar, the plaintiff in her petition and the defendant in its motion and in its brief as respondent here.

The lengthy petition, perhaps by design, lacks clarity. The defendant did not utilize Rule 55.27(d) by moving for a more definite statement. The sufficiency of the petition "to state a claim upon which relief can be granted" was not attacked by the defendant, either in the trial court or, as Rule 55.27(g)(2) permits, in this court.

The brief of plaintiff as appellant here asserts that "a genuine issue of material fact remains ripe for determination. We still have no authoritative determination of what killed Paul J. Peer." Defendant does not challenge the latter statement. Defendant, in its brief, makes no attempt to state what it claims the facts to be nor does defendant accord any factual interpretation to the various items upon which it relied in the trial court to support its motion.

Before examining the propriety of the trial court's ruling, it is necessary to review some of the principles which confront a defendant who seeks to interpose the affirmative defense that a tort claim is barred by the compensation act and that plaintiff must resort to the latter for relief.

In Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193 (Mo. banc 1968), a plaintiff brought a common law negligence action against his employer and the trial court, in dismissing the action, upheld the defense that plaintiff's remedy was exclusively under the compensation law. In reversing the order of dismissal and remanding the cause for trial, the supreme court rejected the contention that All claims for "work-connected injuries" were solely cognizable by the Industrial Commission. The court answered in the negative the following question: "Has the act taken from an employee his right to recover from his employer for an injury That does not fall within the definitions and provisions of the act ?" Harryman, at 195. (Emphasis added.) The court also said at 196: "The obligation to furnish compensation is Only for injury by such 'accident.' The release is only from liability for an injury by such 'accident.' " (Emphasis in original.) ³

Cleveland v. Laclede-Christy Clay Products Co., 113 S.W.2d 1065 (Mo.App.1938) furnishes an example of a situation where a tort defendant, relying upon the affirmative defense of the shield of the occupational disease provisions of the compensation law, failed to sustain its evidentiary burden. The court, at 1071, said:

"Defendant's theory that plaintiff's claim was exclusively under the Missouri Workmen's Compensation Act is an affirmative defense, the burden of pleading and proving of which was upon defendant. . . . To sustain such a defense defendant was required to prove not only that it had filed with the Compensation Commission a written notice of election to bring itself within the occupational disease amendment. . . . But it was required to go further and prove that Cleveland's death was caused or was hastened by the conditions under which he worked after defendant elected to accept the occupational disease amendment. Defendant offered no evidence whatsoever to show that the disability and death of Cleveland were caused by the conditions under which he worked after defendant accepted the amendment. Its proof was directed toward showing that he was suffering from a disease not caused by his employment . . . . If plaintiff had prosecuted a claim under the Compensation Act for the death of her husband on the same evidence for both parties as appears in this record, it is clear that she would not be entitled to receive compensation. . . . There is no doubt that, where the facts show the Compensation Act, including the occupational disease amendment, to be applicable, the right to compensation is exclusive and takes the place of all other rights and remedies of an employee, either under the common law or under the health and safety statutes involved herein. In other words, the Compensation Act, when applicable, is...