Wilson v. Altruk Freight Systems, Inc., No. 17509

Decision Date12 December 1991
Docket NumberNo. 17509
Citation820 S.W.2d 717
PartiesGary G. WILSON, Plaintiff-Appellant, v. ALTRUK FREIGHT SYSTEMS, INC., Defendant-Respondent.
CourtMissouri Court of Appeals

Jim McNabb, Marshfield, for plaintiff-appellant.

William W. Francis, Jr., Placzek & Francis, Springfield, for defendant-respondent.

SHRUM, Presiding Judge.

The plaintiff Gary G. Wilson appeals from a summary judgment denying his negligence claim for damages. The defendant Altruk Freight Systems, Inc., claims the trial court is without subject matter jurisdiction. Rule 55.27(a)(1). That defense is based upon the assertion that the plaintiff is either (a) an employee of the defendant, or (b) a "statutory employee," 1 thus limiting his recovery to the provisions of the Missouri Workers' Compensation Law. 2

The question presented is whether, upon review of the record in the light most favorable to the plaintiff, there is any material issue of fact which could negate the claim that the plaintiff is (a) the defendant's employee, or (b) is deemed by § 287.040.1, RSMo 1986, to be the defendant's employee.

Finding no genuine issue of fact that could negate a determination that the plaintiff was a "statutory employee" under § 287.040.1, we affirm.


The plaintiff was injured in Springfield, Missouri, on August 25, 1989, while unloading a refrigerated trailer-truck unit owned by the defendant. The injury occurred when the plaintiff's hand contacted a fan inside the trailer as he "went about performance of his duty of unloading the ... trailer...." 3 The plaintiff alleges that on "the 25th day of August, 1989, [he] was hired by defendant to unload a trailer of candy product at the warehouse ... of Associated Wholesale Grocers, Inc. ... in Springfield...." 4 Melvin Sloniker, the defendant's truck driver, 5 hired the plaintiff to unload the defendant's trailer on this occasion as he had done 10 to 15 times previous to August 25, 1989. The reason Sloniker did the hiring appears from the contract between the defendant (carrier) and Nichols (truck owner who furnished Sloniker as a driver). The contract states:

24. Contractor shall load and unload the freight if such services are provided for in Carrier's tariffs; if not provided for in Carrier's tariffs, Contractor shall not load or unload the freight. The compensation set forth in Exhibit A includes payment for these services.

The defendant's employee Angela Arzaga testified that sometimes, as in this case, it was necessary for their drivers to hire "lumpers" 6 to unload. When that occurred the defendant's driver hired the "lumper," supervised him, and paid him when the job was done. Recognizing that drivers often used "lumpers" to load and unload, the defendant provided workers' compensation insurance for the leased truck drivers (such as Sloniker) and for the "lumpers" (such as the plaintiff).

The plaintiff, working as a "lumper," has regularly unloaded trucks at the Associated Wholesale Grocers (AWG) warehouse since 1988. Usually, he gets his jobs by "contacting drivers of trucks that have loads coming to [the] warehouse." He calls the drivers by C.B. or drivers call him at home after he has unloaded for them several times. The price for unloading is negotiated with the truck driver each time after the driver tells the plaintiff how many pieces are to be unloaded and the weight per piece. From his past experience, the plaintiff was familiar with the way AWG "require[d] pieces to be stacked on pallets" and had satisfactorily met AWG's requirements over a long period of time.

The August 25, 1989, hiring was handled in the customary fashion as follows. Sloniker called the plaintiff and asked if he wanted to unload a load of Brach's candy for the defendant. The plaintiff agreed. After going to the dock, looking at the load and reviewing the "breakdown sheet," the plaintiff quoted Sloniker a price of $50 for the unloading. Sloniker agreed to the price and left the area. The plaintiff had no further contact with Sloniker until after he was injured.

While Sloniker never attempted to direct the plaintiff in the manner he was to perform his work and he was not "subject to the control of defendant, except as to the The defendant operated in the belief it was obligated to provide workers' compensation insurance for its drivers and lumpers. At the time of the plaintiff's injury, it had such insurance with The Travelers Insurance Company which covered the plaintiff. Timely reports of the plaintiff's injury were filed by the defendant with Travelers.

                result of his work," 7 the plaintiff did testify that Sloniker could have pulled him off the job at any time for any reason, including dissatisfaction with how the unloading was being done.  When specifically asked about who gave him instructions on August 25, 1989, about how to get unloaded and where to unload, the plaintiff answered:  "I'd done it long enough no one had to give me--I followed the work sheets that A.G. furnishes."   Plaintiff also testified that his standing instruction from Sloniker was to work "hard and fast."

From the record, the trial court determined it lacked subject matter jurisdiction. It entered a summary judgment for the defendant. This appeal followed.


Summary judgment is "an extreme, drastic remedy" and on review of a summary judgment we examine the record in the light most favorable to the party against whom the motion was filed. Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384, 385-86 (Mo.banc 1991). We must accord to that party all reasonable inferences which may be drawn from the evidence. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo.banc 1987). The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. Id.

However, a trial court may enter a summary judgment where the pleading, depositions and admissions on file, together with the affidavits, if any, show no genuine issue of material fact exists and that the law entitles the moving party to a favorable judgment. Rule 74.04(c); Ronollo v. Jacobs, 775 S.W.2d 121, 125 (Mo.banc 1989). Summary judgment is an appropriate vehicle for the assertion of an affirmative defense entitling a party to a judgment as a matter of law. Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.App.1989).

It is no longer necessary for the movant to show entitlement to summary judgment by unassailable proof as was necessary before the deletion of subsection (h) from Rule 74.04. Wood & Huston Bank v. Malan, 815 S.W.2d 454, 457 (Mo.App.1991); Union Mut. Ins. Co. v. Brown, 809 S.W.2d 144, 145 (Mo.App.1991); Schwartz v. Lawson, 797 S.W.2d 828, 832 (Mo.App.1990); Defino v. Civic Center Corp., 780 S.W.2d 665, 667 (Mo.App.1989). To meet and overcome a motion for summary judgment, the opposing party may not rest upon mere allegations or denials, but must set forth specific facts that demonstrate the existence of an outstanding genuine issue of material fact. St. Charles County v. Dardenne Realty Co., 771 S.W.2d 828, 830 (Mo.banc 1989). Mere doubt and speculation do not create a genuine issue of material fact. Id.

With the above principles firmly in mind, we examine the single point presented.


When the Workers' Compensation Act is applicable, it supersedes any right that an injured party might otherwise have to maintain a common-law action. Walton v. United States Steel Corporation, 362 S.W.2d 617, 620 (Mo.1962); Brown v. Gamble Const. Co., Inc., 537 S.W.2d 685, 689 (Mo.App.1976); Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 89 (Mo.App.1972). This is true when an employer-employee relationship exists under § 287.120. Marie v. Standard Steel Works, 319 S.W.2d 871, 875 (Mo.banc 1959); Sheen v. DiBella, 395 S.W.2d 296, 298 (Mo.App.1965). It is equally true when the injured party is a "statutory employee" pursuant to § 287.040.1. Montgomery v. Mine La Motte Corporation, 304 S.W.2d 885, 890-91 (Mo.1957).

The "statutory employee" provision of the Act establishes a constructive employment relationship in order to extend coverage of the Act to employers who have work done by contract. McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo.banc 1988). The elements which must co-exist in order to categorize an individual as a statutory employee under § 287.040.1 are: (a) the work was performed under contract; (b) the injury occurred on or about the premises of the alleged statutory employer; and (c) when injured, the alleged statutory employee was doing work which was in the usual course of business of the alleged statutory employer. McGuire, 756 S.W.2d at 534; Raef v. Stock-Hartis, Inc., 416 S.W.2d 201, 207 (Mo.App.1967).

The plaintiff here does not dispute element (a), i.e., that his work of unloading the trailer was done under contract. However, he does dispute elements (b) and (c).

(I) USUAL COURSE OF BUSINESS: As to element (c), the plaintiff claims that there was no evidence that the defendant engaged in unloading trucks customarily. He points to his affidavit in which he states that Sloniker, to his knowledge, had never unloaded trucks at the AWG dock. He suggests that this creates a genuine issue of material fact as to element (c). We disagree. The fact that the defendant's regular employees did not normally unload the trucks does not preclude a finding that such work was an integral and essential part of the defendant's business. Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. 280, 234 S.W.2d 563, 566 (1950).

In the truck lease between the defendant and Nichols, was a provision that required the truck owner and his employees to "load and unload the freight if such services are provided for in Carrier's tariffs." The plaintiff's affidavit is replete with statements that at the AWG warehouse he always contracted with and was paid by truck drivers for his unloading services. That was the consistent practice followed when the plaintiff contracted with Sloniker to unload the...

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