Wood v. Procter & Gamble Mfg. Co.

• Citation: 787 S.W.2d 816
• Decision Date: 13 March 1990
• Docket Number: No. 57260,57260
• Parties: Rick L. WOOD, Appellant, v. The PROCTER & GAMBLE MANUFACTURING COMPANY, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 816

787 S.W.2d 816

Rick L. WOOD, Appellant, v. The PROCTER & GAMBLE MANUFACTURING COMPANY, Respondent.

No. 57260.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 13, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 11, 1990.

Application to Transfer Denied May 15, 1990.

Roy Cameron Dripps, III, Alton, for appellant.

Gary L. Mayes, St. Louis, for respondent.

DOWD, Judge.

Plaintiff appeals the dismissal of his personal injury action for lack of subject matter jurisdiction. We affirm.

The evidence most favorable to the lower court's decision is as follows. At the time of the injury, defendant-respondent Procter & Gamble operated a plant in St. Louis City where it manufactured soap and other household products. Respondent maintained silos at this plant to store materials necessary for its manufacturing. In 1987, moisture entered silo 710, which contained a dry chemical in powdered form, causing a three foot thick layer of the chemical to cake onto the interior walls of the silo. The hardened chemical had a consistency similar to concrete. Such caking had previously occurred at respondent's facility and respondent's employees had cleaned out those silos. The caking on silo 710 was greater than normal, however, and respondent contacted Odesco, appellant's employer, to submit a bid on cleaning the silo. Odesco was in the business of industrial cleanup. The bid submitted at this point was high and respondent decided to proceed with the cleanup using its own employees. Respondent's employees vibrated the silo to loosen the materials then drained the loose chemical from the silo. After working on the silo for a month, much of the material had been extracted, but the three foot caking still covered parts of the silo walls. Respondent then asked Odesco to submit another bid for the remaining cleanup. This bid was accepted.

On Friday November 13th, 1987, Odesco sent appellant and Steven McAffee to clean out silo 710. Respondent's employees had cut an entryway into the side of the silo about thirteen feet from the ground and had erected scaffolding to reach the hole from the outside of the silo. On the inside of the silo, the floor was covered with hardened chemical and more hardened chemical caked the walls to a height of about fifteen feet. Appellant began working inside the silo with a jackhammer, breaking off chunks of hardened material from the wall and handing them through the entry hole to Steve McAffee who deposited them into barrels on the ground. Although he attempted to position himself to avoid any falling chunks of material, appellant was injured when the entire deposit covering the walls fell on him.

Appellant filed and recovered in a workmen's compensation suit against Odesco and also filed a tort action against respondent. Respondent filed a motion to dismiss for lack of subject matter jurisdiction. This motion was based on section 287.040, RSMo 1986, regarding statutory employment. Under that section, an employer who hires an independent contractor can be considered the employer of the independent contractor's employees for purposes of workmen's compensation law. If the statute applies, workmen's compensation is the only remedy the statutory employee has against the statutory employer for a job-related injury and the courts have no subject matter jurisdiction to hear any common law suit concerning the injury. Asberry v. Bannes-Shaughnessy, Inc., 734 S.W.2d 250, 252 (Mo.App.1987). The court granted the motion and this appeal follows.

Appellant has also filed a motion to strike certain depositions presented to this court by respondent because the depositions were never presented to the trial court. A deposition not offered in evidence in the lower court cannot be considered on appeal. National Indemnity Co. v. Liberty Mutual Ins. Co., 513 S.W.2d 461, 468 n. 8 (Mo.1974). Consequently appellant's motion to strike the depositions of Rick Wood, Harold Harper and Larry Enz must be granted. Meiners Co. v. Clayton Green Nursing Center, 645 S.W.2d 722, 724 (Mo.App.1982). These depositions are not considered in this opinion.

Appellant claims that respondent failed to meet its burden of proof on the issue of statutory employment. ¹ The standard of proof in such cases is that the movant must demonstrate a lack of jurisdiction by a preponderance of the evidence. Id. The statute in question provides that:

1. 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.

2. The provisions of this section shall apply to the relationship of landlord and tenant, and lessor or lessee, when created for the fraudulent purpose of avoiding liability, but not otherwise. In such cases the landlord or lessor shall be deemed the employer of the employees of the tenant or lessee.

3. The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.

4. In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.

§ 287.040, RSMo 1986. ² The purpose of the statute "is to prevent an employer from evading workmen's compensation liability by hiring independent contractors to perform the usual and ordinary work which his own employees would otherwise perform." McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988) (quoting Miller v. Municipal Theatre Ass'n of St. Louis, 540 S.W.2d 899, 906 (Mo.App.1976)).

The courts have abstracted three elements from the statute which are necessary to finding a statutory employer-employee relationship: 1) the work was performed pursuant to a contract; 2) the injury occurred on or about the premises of the statutory employer; and 3) the work was in the usual course of business of the statutory employer. Asberry v. Bannes-Shaughnessy, Inc., 734 S.W.2d at 252. Missouri courts have used additional factors to determine whether the above elements have been met: the right of the employer to control the employee, the right of the employer to replace the employee, whether the work was incidental to the business rather than in furtherance of the usual course of business, and whether the work was "isolated occasional specialty work." Rouge v. St. Charles Speedway, 733 S.W.2d 854, 855 (Mo.App.1987). When attempting to determine the application of section 287.040, however, each case must be determined on its own facts and the court must recognize the "real roles and relationships" of the parties as they relate to the purpose of the statute. Lyon v. J.E. Dunn Const. Co., 693 S.W.2d 169, 171 (Mo.App.1985).

The evidence before the court clearly supported a finding of statutory employment under this standard. It indicated that cleaning out silos between uses was a normal part of respondent's business operations. The deposition of respondent's employee Lloyd Murphy, although containing some language to the contrary, supported the overall conclusion that respondent hired Odesco to finish this unusual cleanup because it could not spare manpower for the task, not because respondent was unable to undertake the cleanup. In his deposition, Richard Mueller testified that respondent called in Odesco because of what was "largely a manpower problem." A third employee of respondent, Brenda Bax, executed an affidavit succinctly stating that "P & G's [Procter & Gamble's] employees ordinarily would have completed that cleanup job themselves. However, the cleanup job for silo 710 was taking a fairly lengthy period of time, requiring a significant amount of manpower and adversely affecting production activities. For that reason P & G hired Odesco to conclude the cleanup process."

This situation clearly fits into the purpose of the statute because respondent hired Odesco to do work its own employees would otherwise...