St. Claire v. Minnesota Harbor Service, Inc.

• Citation: 211 F. Supp. 521
• Decision Date: 01 November 1962
• Docket Number: No. 3-62-Civ. 18.,3-62-Civ. 18.
• Parties: Clanty ST. CLAIRE, Plaintiff, v. MINNESOTA HARBOR SERVICE, INC., a Minnesota corporation, Kenneth Hutton and Norman Nerlien, Defendants.
• Court: U.S. District Court — District of Minnesota

211 F. Supp. 521

Clanty ST. CLAIRE, Plaintiff, v. MINNESOTA HARBOR SERVICE, INC., a Minnesota corporation, Kenneth Hutton and Norman Nerlien, Defendants.

No. 3-62-Civ. 18.

United States District Court D. Minnesota, Third Division.

November 1, 1962.

Gilbert J. Schlagel, St. Paul, Minn., for plaintiff.

J. H. Geraghty, St. Paul, Minn., for defendant Minnesota Harbor Service, Inc.

LARSON, District Judge.

This is a tort case and jurisdiction is based on diversity of citizenship and the required amount. The plaintiff allegedly entered the employ of Manpower, Inc. (Manpower) some short time prior to July 21, 1961.

Manpower is a corporation whose general function is to supply personnel as a part of its service to companies which have need for its service and personnel, either on special projects or to fill in a day or so. Manpower made an oral agreement with Minnesota Harbor Service, Inc. (defendant) to furnish personnel to fill in the temporary labor needs of defendant. There has been argument in the briefs and at the hearing as to what the terms of this oral contract were, but it seems clear that it contained at least the following provisions:

1. Manpower was to provide its employees to defendant upon request, at any time.

2. The employees sent to defendant for designated work were to remain the employees of Manpower.

3. All hiring of the employees was to be done by Manpower. Manpower paid the employees, deducted taxes, social security, workman's compensation, filed the bond, selected the man for the job, instructed the man as to where he was to go and the general type of work which he was to do. The only prerequisite was that the laborer be suitable for the work required of him.

4. In consideration for this agreement, defendant would pay Manpower $1.71 per hour per man, and Manpower in turn would pay its own employee.

The plaintiff and defendant make various allegations as to some of the other terms of the oral contract. The relevant allegations will be considered in this opinion and the others will not.

The important facts which are not in dispute are that the plaintiff was sent to the defendant to clean a barge on July 21, 1961, that while he was performing the task of cleaning the barge he stopped and assisted some other employees who were engaged in manipulating a large cover with a crane, the cover fell, and the plaintiff was severely injured. Negligence is alleged. The question here is whether the plaintiff is barred from a tort action by virtue of being an "employee" of the defendant insofar as the Workman's Compensation law is concerned. The plaintiff alleges that he was only the employee of Manpower and that the defendant is a third-party tort-feasor which he can sue in tort under the applicable statutes of this State. The defendant alleges that it had full control over the details and manner in which the work of the plaintiff was to be done. The plaintiff (1) denies "control" by the defendant and (2) says that in any event the question is one for the jury. The defendant has moved for a summary judgment under Rule 56.

The summary judgment rule says, inter alia, that courts and defendants are not to be burdened with the trying of actions which at the outset can be reasonably considered to be destined for failure. The Courts of Appeal have made it clear that summary judgments are not to be granted readily. On the other hand, courts and defendants are not to be unduly harassed. With these considerations in mind, the question will be approached: Are there any genuine issues of fact and is the defendant entitled to a judgment as a matter of law?

At the outset of the plaintiff's brief the following "fact" appears as a term of the oral contract:

"Supervision and control of the employee was to remain with Manpower, Inc. leaving merely the designation of work to Minnesota Harbor Service, Inc."

It is obvious that this is an argumentative statement, but beyond that it seems to draw an extremely fine distinction and this distinction will be considered in more detail later. The plaintiff is trying to get his case to the jury and is not in any way to be criticized for this. However, it would seem that this Court would be better advised to use such technical words as "control" only to state the issues, define the law, and reach the conclusions, lest clear analysis of the facts be obscured by a smokescreen of semantics. Technical terms are a necessary part of the law, but they cannot be substituted for the facts. And, most important, it must be recalled, Rule 56 is concerned with the facts. The whole purpose of the rule is to examine the factual allegations of the parties and determine whether there are any genuine issues as to the facts.

The law is clear. If the plaintiff was injured within the scope of his employment while he was an "employee" of the defendant, then he is barred by the applicable Workman's Compensation statute from bringing this action. 13 M.S.A. § 176.01 et seq. The Courts of this State have applied the test of "control" to determine whether one person was the "employee" of another. See cases cited in 13 M.S.A. § 176.01 at note 75. "Control" has in fact been recently said to be the most important single factor. Krause v. Trustees of Hamline University of Minn., 243 Minn. 416, 68 N.W.2d 124 (1955). The test, of course, must be applied to the facts, which in this case means that the economic realities underlying the agreement between Manpower and defendant must be ascertained.

The only thing that is clear at the outset is that Manpower was to send personnel to the defendant to do work. In the plaintiff's brief (p. 5) it is said:

"Under the agreement, Manpower, Inc., was to maintain exclusive control over its men, had exclusive right to hire, fire and regulate the actions of its men, paid the men, deducted taxes and social security, filed the bond, instruct the men when and where to go and the type of work to be done and by agreement maintain the relationship of master and servant between itself and St. Claire." (Emphasis supplied)

This is a bold argument. It should be examined closely. It will be observed that inserted in the details of clerical work which Manpower was to perform is the statement that Manpower had the right to "instruct the men when and where to go and the type of work to be done." and to "regulate the actions of its men." This is a somewhat misleading statement because it might cause the reader to think that it was the business of Manpower which was being performed on the barge and not that of the defendant. The reader might think that Manpower had more interest and concern in the barge than did the defendant. If this impression exists it should be corrected. In this case the plaintiff does not seem to have been told when he left Manpower that he was to go to the defendant and clean barges, but let us assume that he was given very explicit directions as to what to do. Where did these directions come from? Where, in short, did the "control" originate; where did it all start? Now it is certain that Manpower, if it wishes, can hire people and send them places to do things that Manpower would like to see done and that the owners of the property would not object to being done. Is Manpower some sort of a charitable organization like the Red Cross? That has not been argued. Now it is also certain that Manpower, if it wished, can hire people and send them places to do things which it would like to see done even though the owners of the premises objected to it. Is Manpower some sort of an officious intermeddler? That has not been argued. It would thus seem that the impetus of the whole affair—the origin of the idea that certain work needed to be done—the embryo of the "control"—began with defendant and not Manpower.

Plaintiff and other personnel were sent by Manpower to clean barges under the control of the defendant. Manpower just provides temporary help for a fee. Manpower had no interest in the barge. Plaintiff went to the defendant because the defendant needed some temporary help. Manpower was in the business of selling temporary help, and the defendant wanted to buy some. That is why the plaintiff went to the barge on that fateful day, and it seems patently clear that any argument to the contrary would be met with utter disbelief by a jury. The law is clear; the test is control. The control originated at the defendant. No reasonable jury could find that the plaintiff and his brother were on that barge for any reason save that the defendant had sent for them.

A description of what happened on the barge appears in the plaintiff's brief (p. 10) and is as follows:

"Mr. St. Claire had been cleaning the barges and the Minnesota Harbor Service foreman using the crane had been moving covers. Mr. St. Claire was requested to give a helping hand to the other employees who were engaged in manipulating a large cover. St. Claire had been cleaning the barge while other employees had been setting the covers and assisting the foreman with the crane. In this instance Mr. St. Claire was asked to give a helping hand and it was at this time that the accident occurred. They had not been engaged in the same activity." (Emphasis added.)

It will be observed that the plaintiff has used the words "requested" and "asked" to describe the communication which led the plaintiff to proceed to the fateful task. It may very well be that the plaintiff was "asked" to lift the barge cover, but the question here is whether the defendant could have simply told him to do it without being polite about it. The plaintiff seems well aware that this is the issue, because elsewhere in the plaintiff's brief (p. 6) appears the following statement:

"The relation of master and servant is a contractual one. A contract may be expressed or implied, but there must be a contract in order to create the relationship. Dahl v. Wunderlich, 194 Minn. 35, 259 N.W. 399. A new master cannot be foisted upon a servant unwittingly.

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