Sippel v. Custom Craft Tile, Inc.
| Decision Date | 25 April 1972 |
| Docket Number | No. 34179,34179 |
| Citation | 480 S.W.2d 87 |
| Parties | Robert SIPPEL, Plaintiff-Appellant, v. CUSTOM CRAFT TILE, INC., a Corporation, Defendant-Respondent. . Louis District |
| Court | Missouri Court of Appeals |
Schaeffer & Schaeffer, Clayton, for plaintiff-appellant.
Robert H. Burns, Clayton, for defendant-respondent.
DOERNER, Commissioner.
Trial of this personal injury action culminated in a verdict and judgment for plaintiff for $25,000. The trial court overruled defendant's motion for judgment in accordance with its motion for a directed verdict but sustained its motion for a new trial, and plaintiff appealed.
Defendant was engaged in contracting to furnish and install carpeting and tile in apartments and other buildings, primarily with general contractors and builders. Sometime prior to May 9, 1968, the defendant sent an order to Lowry Distibutors for the purchase of rolls of carpeting. Lowry, the sales representative of various mills, ordered or purchased the carpeting from a mill named Condeck Carpets, of Cartersville, Georgia, to be shipped to plaintiff. Condeck apparently shipped the rolls of carpeting by Roadway Express Company, a common carrier.
On and prior to May 9, 1968, plaintiff was a truck driver employed by D & C Truck Leasing Company, and he and D & C's tractor had been leased by D & C to Roadway in St. Louis. On that day, pursuant to the directions of Roadway's dispatcher, plaintiff attached the tractor to Roadway's trailer containing freight for one other consignee as well as the rolls of carpeting consigned to Custom. Plaintiff arrived at defendant's place of business, parked his equipment, and advised a lady in defendant's establishment that he had the carpeting for them. The lady replied that he would have to wait because their men were on the street. Plaintiff waited outside, in or near his truck, and after a while one of defendant's employees, named Glen Vollmar, appeared with one of defendant's trucks. Vollmar told plaintiff that plaintiff would have to move plaintiff's truck so that it was parallel with the building, and plaintiff did so. Vollmar said he would unload the truck by wrapping one end of a chain around a roll of carpeting, hooking the other end on to defendant's truck, and backing the truck so that the roll of carpeting would be pulled off of plaintiff's truck. Vollmar requested plaintiff to help him unload the truck, and together they lifted up one end of the roll of carpeting so that the chain could be passed around the roll.
Two rolls were pulled off of plaintiff's truck and onto the ground in that manner, but the third was jammed against the side of the truck in such a way that plaintiff and Vollmar could not get the chain around the end of the roll. Plaintiff suggested that they pry the roll by means of an iron bar, but Vollmar replied he didn't have one or didn't know where one was. Vollmar then got up on the rolls and hooked the chain, which had hooks on both ends, on the carpet fabric. Plaintiff protested that Vollmar would tear the carpeting, but Vollmar answered that there was no other way to get the roll off. Vollmar told plaintiff to stay in the trailer and to pull the roll to get it away from the lip of the trailer. Vollmar pulled the roll with his truck, and when the roll moved, plaintiff passed it over the lip. However, instead of ceasing to pull, when plaintiff called to Vollmar to stop, Vollmar continued to pull, plaintiff stepped back, and as the two and a half foot roll started to fall it swung and one end hit plaintiff and pinned him against the side of his trailer, injuring him.
Plaintiff filed a claim against D & C for compensation under the Workmen's Compensation Law, which resulted in a compromise settlement whereby D & C and its insurer, Liberty Mutual Insurance Company, paid plaintiff $3495.43, exclusive of medical aid of $248.00. Plaintiff's action against Custom followed.
During the course of plaintiff's case in chief he introduced and read into evidence Item and Rule 568 of the National Motor Freight Classification A10, apparently promulgated by the Interstate Commerce Commission, which was as follows:
Plaintiff's evidence showed that the rolls of carpeting exceeded the foregoing dimensions and plaintiff testified on both direct and cross-examination that he worked under the ICC regulations, that when requested by the consignees he was to help unload the truck if the item of freight exceeded the foregoing weight or size, and that he was assisting in the unloading in the instant case at the request of Custom, the consignee.
Inasmuch as they would dispose of the appeal, if valid, we consider first two contentions made in defendant's brief. Initially defendant maintains that under the evidence plaintiff was a statutory employee within the meaning of Section 287.040(1), RSMo 1969, V.A.M.S., and that the trial court should have directed a verdict for defendant at the close of all the evidence. The defense that plaintiff was a statutory employee of defendant and hence could not maintain an action at common law against it is an affirmative one and the burden of pleading and proving that defense rested upon the defendant. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330. Defendant sustained that part of its burden regarding pleading for in its amended answer defendant alleged, as an affirmative defense, that plaintiff, D & C, and it were at the time all operating under the Workmen's Compensation Act and '* * * That the liability, if any, of the Defendant to Plaintiff, Robert Sippel, was as a statutory employer under the Missouri Workmen's Compensation Act, and, in particular, Section 287.040, RSMo, * * *.'
Section 287.040(1) provides:
If the evidence showed, as a matter of law, that plaintiff was a statutory employee of the defendant the trial court should have directed a verdict for defendant, for then plaintiff's Walton v. United States Steel Corporation, Mo., 362 S.W.2d 617, 620.
In Walton v. United States Steel Corporation, supra, the defendant maintained a warehouse in St. Louis for the processing (cutting to the required length and shape to suit the needs of customers) and sale of steel and aluminum products. It did not own any trucks or employ any drivers to provide a delivery service. All deliveries were made by Highway and City Delivery Service, Inc., which had entered into a written contract with defendant Steel Corporation to provide that service. Plaintiff, a truck driver, was employed by Highway and regularly drove one of its trucks used to deliver defendant Steel Corporation's products to its customers. The trucks furnished by Highway for delivery of defendant's products had a sign thereon displaying the name of defendant and the defendant had furnished plaintiff a number of uniforms with the words 'United States Steel,'...
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...and the trial court erred in not submitting the issue to the jury. Defendant contends that our recent decision of Sippel v. Custom Craft Tile, Inc., Mo.App., 480 S.W.2d 87, controls the instant case. Sippel is factually similar in that it also involved a truck driver injured during an unloa......