Wright v. Habco, Inc.

• Citation: 419 S.W.2d 34
• Decision Date: 09 October 1967
• Docket Number: No. 1,No. 52680,52680,1
• Parties: James L. WRIGHT, (Plaintiff), Appellant, v. HABCO, INC., (Defendant) Respondent
• Court: Missouri Supreme Court

Page 34

419 S.W.2d 34

James L. WRIGHT, (Plaintiff), Appellant, v. HABCO, INC., (Defendant) Respondent.

No. 52680.

Supreme Court of Missouri, Division No. 1.

Oct. 9, 1967.

Gray & Sommers, James E. Heckel, St. Louis, for plaintiff (appellant).

Evans & Dixon, William Wallace Evans, St. Louis, for respondent.

HOLMAN, Judge.

In this action plaintiff sought to recover damages in the sum of $167,000 for personal injuries he sustained in a fall from a scaffold while working in defendant's building. After the facts had been fully developed by admissions, interrogatories, and depositions the defendant filed a motion for summary judgment based upon the contention that plaintiff was an employee, or borrowed employee, of defendant and hence his exclusive remedy against defendant was under the Missouri Workmen's Compensation Law. The trial court sustained the motion and entered a judgment in favor of defendant. Plaintiff has appealed.

Plaintiff was employed by manpower, Inc., on January 2, 1964, and continued to work for it until March 5, 1964, the date of his injury. Manpower, Inc. was engaged in the business of furnishing workmen to its customers, usually on a temporary basis. In this instance Manpower paid plaintiff the minimum rate of $1.25 an hour, and charged its customers for whom he worked at the rate of $1.97 per hour. From the amount collected, in excess of the amount paid plaintiff, Manpower paid certain expenses such as workmen's compensation and unemployment compensation insurance. Also included in that amount was a commission for Manpower representing its operating expenses and profit. Manpower withheld from plaintiff's wages the required amount for social security, income, and earnings taxes.

Habco is a real estate holding company which owns and leases real estate. The building where plaintiff was injured was purchased by Habco in June 1963. It had been vacant for an extended period of time and was in need of extensive cleaning and renovation before it could be used by a new tenant. Defendant employed Alfred Johnson to supervise the renovation. It also employed Fred Gildehaus, a carpenter. Both of these men were familiar with the building as they had been employees of the previous owner.

On January 20, 1964, plaintiff and one John Owen were sent out by Manpower to work for defendant. Plaintiff worked at cleaning up the building from that time until the time of his injury. Manpower furnished no equipment but merely instructed plaintiff to report to Mr. Johnson. It is undisputed that Mr. Johnson gave plaintiff directions as to the work he was to perform. Plaintiff testified that Mr. Johnson would tell them each morning what he wanted them to do that day; that Mr. Johnson was his 'boss' on that job and he had no other boss. At the time of his injury plaintiff was working on a scaffold removing conduit pipes from one of the ceilings in the building. After starting to work in the defendant's building plaintiff did not report to the Manpower office except after work on Friday afternoons when he received his wages for the week.

It appears from the interrogatories answered by defendant, which were read in evidence, that defendant did not file a notice of plaintiff's accident with the Division of Workmen's Compensation, and that neither it nor its insurer made any payment of workmen's compensation or medical expenses to plaintiff; that Manpower had withheld social security and income tax payments from plaintiff's paycheck and that such had not been withheld by defendant. It was agreed that plaintiff had filed a claim under the Workmen's Compensation Law against Manpower and that in its answer Manpower admitted that at the time of the accident it was the employer of plaintiff; the evidence also showed that defendant had filed an election to accept the workmen's compensation law effective October 10, 1962, and that plaintiff had never rejected that law.

Harry M. Baumstark, the president and chief stockholder of defendant, stated in his deposition that he did not consider plaintiff an employee of Habco but considered him an employee of Manpower. The branch manager of manpower also testified that when they sent employees out to work for customers they expected the customer to use the employee in the classification of work for which he was obtained. It also appeared that in accepting the employees the customer signed an agreement containing certain conditions, including a provision that the customer would not employ the person furnished to him by Manpower for a period of at least 90 days following the completion of the work being performed.

Civil Rule 74.04(h), V.A.M.R. provides that in no case shall a summary judgment 'be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.'

The principal question presented upon this appeal is whether it may be said as a matter of law that plaintiff, at the time of his injury, was an employee of Habco within the meaning of the Workmen's Compensation Law. See Chapter 287 (unless otherwise specified, all statutory citations are to RSMo 1959, V.A.M.S.). If he was such an employee his exclusive remedy against defendant is under the compensation law and he is precluded from maintaining an action for damages such as the one here involved. § 287.120.

In this case there is little, if any, dispute concerning the essential facts. Defendant had elected to accept the Workmen's Compensation Law and plaintiff had never rejected that law. Plaintiff was in the general employment of manpower. He had been employed with the understanding that he would work for Manpower's customers. For several weeks before his injury he had been working for defendant under the exclusive directions of defendant's foreman.

For reasons hereinafter discussed we have concluded as a matter of law that plaintiff was an employee of defendant at the time he was injured; that his exclusive remedy was under the Compensation Law and hence the trial court did not err in entering a summary judgment in favor of defendant. We are supported in our conclusion by the following cases: Patton v. Patton, Mo., 308 S.W.2d 739; Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628; McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516; Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E.2d 554; Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 201 A.2d 90, and St. Claire v. Minnesota Harbor Service, Inc., D.C., 211 F.Supp. 521.

As stated in the Ellegood case, 'the relation of employer and employee exists as between a special employer to whom an employee is loaned and said employee whenever the following facts concur: (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; (c) power of the special employee to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.' 162 S.W.2d l.c. 633.

In considering those requirements as applied to the case before us we think it is quite clear that plaintiff consented to work for defendant and that such was pursuant to an implied contract between them. In this case plaintiff knew when he was hired by Manpower that all of his work would actually be performed for various customers of his general employer. The very fact that he entered into an employment arrangement of that nature would constitute a general consent to work for special employers such as defendant. Also, plaintiff had actually entered upon that work and had performed same under the exclusive...