Reichert v. Jerry Reece, Inc.

• Decision Date: 18 December 1973
• Docket Number: No. 9498,9498
• Citation: 504 S.W.2d 182
• Parties: Donald L. REICHERT, Claimant-Respondent, v. JERRY REECE, INC., and Bituminous Casualty Corporation, Employer-Insurer-Respondent, and Sam Tanksley Trucking, Inc., and Medallion Insurance Company, Employer-Insurer-Appellant.
• Court: Missouri Court of Appeals

Page 182

504 S.W.2d 182

Donald L. REICHERT, Claimant-Respondent, v. JERRY REECE, INC., and Bituminous Casualty Corporation Employer-Insurer-Respondent and Sam Tanksley Trucking, Inc., and Medallion Insurance Company, Employer-Insurer-Appellant.

No. 9498.

Missouri Court of Appeals, Springfield District.

Dec. 18, 1973.

James R. Reynolds, Wendell W. Crow, Ford, Ford & Crow, Kennett, for claimant-respondent.

Byron D. Luber, Ward & Reeves, Caruthersville, for Reece and Bituminous, employer-insurer-respondent.

Richard D. Jones, Oliver, Oliver & Jones, Cape Girardeau, for Tanksley and Medallion, employer-insurer-appellant.

TITUS, Chief Judge.

The multipartite question is: Was claimant (for the purposes of workmen's compensation benefits) the 'employee' ¹ of Jerry Reece, Inc. (Reece), or Sam Tanksley Trucking, Inc. (Tanksley), or both, when he sustained an accidental injury on March 31, 1969, and, if he was an employee of Tanksley, is Tanksley relieved of liability under §§ 287.420 and 287.430, or both? ² The Division of Workmen's Compensation concluded Tanksley was the sole employer with no outs under the foregoing sections. In turn, the Industrial Commission and the Circuit Court of Pemiscot County agreed. Tanksley appealed.

By written contract for a rental of '29% on the gross freight on each load,' ³ Reece leased its 1967 International tractor-truck to Tanksley for one year commencing July 1, 1968. Reece agreed to pay the wages of the drivers, 'all social security and payroll deductions required by law, workmen's compensation,' and to furnish the fuel, oil, tires 'and any and all supplies and repairs needed to keep said equipment up to the minimum operating efficiency.' The lease also recited 'that the drivers . . . used by Lessor to fulfill this contract are not to be construed . . . to be the employees . . . of Lessee and that the relationship of Lessor to Lessee is that of an independent contractor, and . . . that said Lessor will personally assume full responsibility and take such action that is necessary to save said Lessee harmless from any damage that might occur for any reason to said equipment, drivers, helpers, employees or agents of said Lessor.' According to Reece, it was understood that Tanksley 'was to furnish the trailer and the loads, the licenses, permits, and everything,' except the items previously enumerated as being Reece's responsibility. ⁴

On Christmas Day 1968, claimant inquired of Reece 'about driving one of his trucks.' Reece said that 'if it was all right with Mr. Tanksley it was all right with him.' However, Reece could not assure claimant when he would start driving because 'it was up to Tanksley to hire the man' and claimant 'had to clear through the application and physical.' Claimant secured a physical examination and delivered the report thereof to Tanksley; he also obtained from and filed with Tanksley his application form for employment. After claimant started driving, all of his dispatching was made by Tanksley who told him 'where to go and when to go (and) where the load is and when I am supposed to pick it up (and) where it goes.' Perishables were transported in Tanksley's trailers (propelled by the leased truck), and Tanksley instructed claimant 'what temperature to put on them.' Claimant talked to Tanksley by telephone '(j)ust about every day . . . to let him know everything was okay and I was on schedule and if I was unloaded he would give me my pickups.' Reece agreed that he had 'no control where this truck was to go and how it was to go and when it was to get back;' in fact, Reece only saw the truck 'when it happened to be through this end of the country,' and the instructions given claimant by Reece regarding the truck, were limited to 'the service of it, told him how often to service it.' Either Reece or Tanksley could have fired claimant. On the particular trip when the accident in question occurred, Tanksley had sent claimant to California; he had secured a load there and in Arizona and was dispatched by Tanksley to deliver it in Ohio. While traveling through Indiana enroute to the intended destination, the tractor-trailer unit ran off the highway and over an embankment. The nature and extent of claimant's injuries are not disputed, and although they were received outside of this state, it is agreed the Missouri act applies because the contract of employment (with whomever) was made in this state. § 287.110, subd. 2.

I

Opinions concerned with the general-employer-special-employer problem under an equipment lease agreement, oft times become preoccupied with the employee's understanding as to the identity of his employer and flail the written contract until each kernel has been thoroughly floured and explained. We eschew such an undertaking because, as between the employee and the employers, such considerations have little, if any, importance. It is immaterial for whom claimant opined he was working since his understanding cannot change the true facts or the law. Harbor Towboat Co. v. Lowe, 47 F.Supp. 454, 457(5) (D.C.N.Y.1940). Commitments of an agreement are limited to the parties thereto (Kahn v. Prahl, 414 S.W.2d 269, 278(3) (Mo.1967)) and contractual obligations cannot be imposed upon a stranger to an agreement, especially when the contract is one for services. Johnson v. Coleman, 288 S.W.2d 348, 349(2) (Ky.1956); 17 Am.Jur.2d, Contracts, § 294, pp. 710--711. Moreover, irrespective of undertakings by agreement to classify drivers paid by the lessor as unqualified employees of the lessor or as employees of an independent contractor, descriptive nomenclature is never determinative, controlling or binding (particularly as to workmen who are strangers to the contract) if there is evidence to deny it in fact or if the assumed relationship be destroyed by the actual facts and circumstances through the conduct of the parties. Talley v. Bowen Construction Company, 340 S.W.2d 701, 705(5) (Mo.1960); Frank v. Sinclair Refining Co., 363 Mo. 1054, 1062, 256 S.W.2d 793, 797(5) (1953); Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341, 343(3) (1949).

It has been said that '(t)he governing principle of 'servant loaned or hired to another' (58 Am.Jur. 'Workmen's Compensation' Sec. 343, p. 812) is summarized in this applicable language: 'When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work.' 1 Larson, Workmen's Compensation, Sec. 48, p. 805.' Dickhaut v. Bilyeu Refrigerated Transport Corp., 441 S.W.2d 54, 57(2) (Mo.1969). Albeit this pronouncement may suffice to resolve the particular circumstances presented in the opinions which recite it, we doubt the complete accuracy of the requirement that "(a) the employee has made a contract of hire, express or implied, with the special employer." It was early recognized that the Missouri act, by reason of its definition of 'employee' (note 1, supra), 'includes every person 'in the service of any employer' and is not confined to those 'under any contract of hire,' express or implied, but also includes those performing service by 'appointment or election. " Pruitt v. Harker, 328 Mo. 1200, 1210, 43 S.W.2d 769, 772--773 (1931). Thus a person may be an 'employee,' or more accurately a 'workman,' under the Missouri workmen's compensation law 'either (1) because of any contract of hire or (2) because of any appointment or election.' Fielder v. Production Credit Association, 429 S.W.2d 307, 314 (Mo.App.1968). We usually envision the payment of wages or compensation as incident to an employer-employee relationship if predicated upon a contract for hire, but the relationship, especially because of any appointment or election, may exist notwithstanding the fact that the servant neither expects nor is entitled to compensation from the particular employer for whom he is rendering service. Lawson v. Lawson, 415 S.W.2d 313, 319(6) (Mo.App.1967). Consequently, although the only contract for hire shown by the evidence may be between the workman and his general employer (Reece), the existence of a contract of hire with the claimant was not a prerequisite to the investiture of Tanksley (lessee) with the rank of special employer as that may be accomplished 'under any appointment or election.' § 287.020, subd. 1, supra; Feldmann v. Dot Delivery Service, 425 S.W.2d 491, 497(3) (Mo.App.1968).

In the instant case, the fact that Reece, as lessor and general employer, paid claimant's wages, retained the right to discharge (a right shared with Tanksley), kept the leased equipment in repair and paid for its operation, would not prevent claimant from becoming a workman for Tanksley as his special employer. McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 346, 153 S.W.2d 67, 68, 136 A.L.R. 516, 518 (1941); Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 979--980, 162 S.W.2d 628, 634 (1942). The principal question is not whether claimant remained the servant of Reece as to matters generally, but whether, when the accident occurred, he was performing services essentially for Tanksley which Tanksley had the right to control or direct. Patton v. Patton, 308 S.W.2d 739, 747 (Mo.1958). The evidence clearly shows that when claimant sought employment from Reece it was understood his commencing work was conditioned upon Tanksley's approval and that he would be dispatched by Tanksley. Also, from the beginning, after his employment was cleared through Tanksley, claimant reported to Tanksley regularly and not only consented to but did follow Tanksley's instructions as to when and where to go, what loads to pick up, where to make deliveries, and what temperatures to keep on the loads. Admittedly, Reece had no authority to...