Walton v. U.S. Steel Corp.
| Decision Date | 14 November 1962 |
| Docket Number | No. 49028,No. 1,49028,1 |
| Citation | 362 S.W.2d 617 |
| Parties | Edward WALTON, Respondent, v. UNITED STATES STEEL CORPORATION and Ross Redd, Appellants |
| Court | Missouri Supreme Court |
Alexander & Robertson, L. A. Robertson and Ernest E. Baker, St. Louis, for appellants.
James E. Hullverson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
HOLMAN, Commissioner.
Plaintiff sustained severe personal injuries when struck by a 'lift' of angle irons which was dropped from an overhead crane being operated by defendant Ross Redd in the warehouse of the corporate defendant. In this action to recover damages for his injuries plaintiff obtained a verdict against both defendants in the sum of $136,000. A required remittitur was entered by plaintiff in the sum of $46,000 and defendants have appealed from the $90,000 judgment which ensued.
A motion filed by plaintiff to dismiss the appeals because of alleged violations of Civil Rule 83.05, V.A.M.R., was ordered taken with the case. Appellants have filed a motion for leave to file a supplemental brief amending their original brief which motion was also ordered taken with the case. While there is some merit in plaintiff's motion we have decided that it should be overruled and that the motion of appellants should be sustained and their supplemental brief ordered filed herein.
United States Steel Supply, a division of United States Steel Corporation (hereinafter, for convenience, referred to in the singular as 'defendant') maintained a warehouse on Sarah Avenue in St. Louis, Missouri, for the processing (cutting to the required length and shapes to suit the needs of customers) and sale of steel and aluminum products. About 10 percent of the products sold were called for by customers but the remaining 90 percent was delivered to the customer's place of business. Defendant did not own any trucks or employ any drivers to provide a delivery service. At the time in question all deliveries from this warehouse were made by Highway and City Delivery Service, Inc. (hereinafter referred to as 'Highway') who had entered into a written contract with defendant on October 13, 1958, to provide that service. Highway furnished three trucks (which were built according to specifications furnished by defendant) and drivers therefor to deliver products from the defendant's warehouse.
Plaintiff, a truck driver, was employed by Highway and had been assigned to drive a truck making deliveries for defendant. He was injured on June 3, 1960, while his truck was being loaded. A 'lift' of angle irons was being moved by overhead crane to the vicinity of the truck to be loaded thereon. The angle irons were held by a chain around each end thereof suspended from a 'rack' which was a part of the crane. The movement of the load was stopped as it neared the truck in order to change the direction. When the operator again started to move the load one rack moved and the other stuck, with the result that one end of the load was pulled away from the chain which held it and the angle irons fell to the floor. Plaintiff had observed the occurrence and sought to escape injury by 'diving' under the truck but the angle irons struck him in the pelvic area. No point is made on this appeal concerning a submissible case of negligence and hence no further details need be given regarding the casualty.
The first point made in the brief is that 'the trial court erred in denying the motion of defendant United States Steel Corporation for a directed verdict at the close of all the evidence, because the evidence shows that plaintiff was a statutory employee of said defendant, or that he was a loaned employee of said defendant and his exclusive remedy against said defendant was before the Missouri Industrial Commission, and the circuit court was without jurisdiction in this case.' In this connection we note that defendant in its amended answer pleaded that 'it was operating under the provisions of the Missouri Workmen's Compensation law at the time of the occurrence alleged in plaintiff's petition, and that at said time there was in full force and effect a contract between defendant and the Highway and City Delivery Service, Inc., whereby said company was to furnish to defendant at its Supply Division, located at 310 South Sarah Street in the City of St. Louis, Missouri, certain trucks and drivers thereof for the purpose of delivering defendant's products to its customers in the operation of its usual business and that by reason of said contract plaintiff was on the premises of the defendant's Supply Division on June 3, 1960, when he allegedly sustained the injuries set out in his petition, and plaintiff was therefore a statutory employee of the defendant United States Steel Corporation and is limited to the compensation provided for by the Missouri Workmen's Compensation Law and plaintiff is not entitled to maintain a common law action against the defendant United States Steel Corporation.' That defense was submitted in defendants' Instruction No. 4 which reads as follows:
'The court instructs the jury that any employer who has work done under contract on or about his premises, which is an operation of the usual business which he there carries on, shall be deemed an employer and shall be liable under the Missouri Workmen's Compensation law to the employees of such contractor when injured on or about the premises while doing work which is in the usual course of the employer's business.
'The court further instructs you that if you find and believe from the evidence that the defendant United States Steel Corporation contracted with plaintiff's employer to do work on or about its premises which was an operation of the usual business carried on there by defendant United States Steel Corporation, and that plaintiff's employer was an independent contractor in doing said work, and that plaintiff was injured by reason of an accident arising out of and in the course of his employment on the premises of defendant United States Steel Corporation while plaintiff was doing said work, if you so find, which was an operation of and in the usual course of the business of the United States Steel Corporation carried on on its premises, if you so find, then the court instructs you that plaintiff cannot recover against defendant United States Steel Corporation, and you should find in favor of defendant United States Steel Corporation and against plaintiff.'
The court also gave Instruction No. 5 at the request of plaintiff which, in a general way, may be described as a converse of No. 4. That instruction required a finding, as a predicate to a finding for plaintiff upon the issue submitted, that the work of Highway 'was not an operation of the usual business which the United States Steel Corporation there carried on, but was only incidental, ancillary or auxiliary thereto.'
From what we have heretofore said it appears clear that plaintiff was not an actual or direct employee of defendant. Defendant's claim is that he was a so-called statutory employee under the provisions of Sec. 287.040(1) () which reads as follows: 'Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.' If plaintiff was an employee of defendant, statutory or direct, his exclusive remedy was under the Workmen's Compensation Act. That act, if applicable, would supersede any right plaintiff might otherwise have had to maintain an action at common law. See Sec. 287.120.
Defendant has also suggested that plaintiff was its 'loaned employee.' That theory was not pleaded or submitted in the trial court. Since it is raised for the first time in this court it will be disregarded and we will limit our consideration to the question as to whether plaintiff was a statutory employee.
The defense that plaintiff was a statutory employee and hence could not maintain an action at common law is an affirmative one and the burden of pleading and proving that defense rests upon the defendant. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330. And in determining whether the court erred in failing to direct a verdict for defendant we should bear in mind the settled rule that a 'court should never withdraw a question from the jury, unless 'all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue.' * * * Where there is uncertainty arising 'from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.'' Courtney v. Ocean Accident & Guaranty Corp., 346 Mo. 703, 142 S.W.2d 858, 860. Also, in ruling the question we will view the evidence in the light most favorable to plaintiff and will disregard defendant's evidence unless it aids plaintiff.
It was stipulated that Highway was a major employer under the Workmen's Compensation Act and carried a policy of workmen's compensation insurance with American Surety Company, and that said insurer had paid plaintiff the compensation benefits he was entitled to; that defendant was also a major employer under the Act and had qualified as a self-insurer.
Plaintiff testified that he was employed by Highway on October 13, 1958, and continued to work for it until the date of his injury; that his main duty was as a truck driver making deliveries for defendant, although he had on occasions done some work for Highway on trucks transporting goods for other customers; that he took no orders or directions from anyone...
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