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Shurvington v. Cavender Drywall1/30/2001
the borrowed servant defense may be available to the general employer even if some control is retained by the general employer. He argues that line of authority is represented by Patton and Reichert.
If Huff is correct that there are two inconsistent lines of authority, then we would be compelled to follow Patton, as the pronouncement of our Supreme Court, and reject the other line of authority. In Patton, the special employer (Tri-State) contended that there was error in awarding compensation benefits to Mr. Patton against it because "Patton and Boyd did not resign full control of Jess Patton for the time being and Tri-State did not have sole and exclusive control over him, and, also, the employee did not consent to a change of employers." Patton, 308 S.W.2d at 744 (emphasis in original). We perceive that to be essentially the argument made now by Huff.
The Patton court then discussed a number of cases reciting the general principle in tort cases, that " he right of control, rather than the fact of control, governs. To escape liability the original master must resign full control of the servant for the time being." Id. at 744 (internal citations omitted) (emphasis added). The court then extensively discussed Schepp, which was stressed by Tri-State as it is here by Huff. The court also cited a number of other cases sustaining awards against the general, or original, employer.
The Patton court held that those cases were not determinative:
In other cases this fact issue has resulted in holding the borrowed servant with respect to the particular act was the servant of the special employer. Tri-State would apply the rule that the general employer must resign full control and the special employer must have sole and exclusive control too broadly. Id. at 745. The court then quoted from McFarland v. Dixie Machinery & Equip. Co., 153 S.W.2d 67, 71-72 (Mo. 1941), which posited the issue as follows:
The question is as to whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act. This is a question of fact in each case. Patton, 308 S.W.2d at 746 (italics in Patton). The Patton court then reminded that determining who is an employee and who is an employer under workers' compensation acts depends upon the terms and definitions of such acts and not on common law master/servant principles:
The master's liability thereunder [workers' compensation acts] is not for a tort based on the rule of respondeat superior. The compensation law is broader than the common law principles of master and servant. Id.
We do not read Patton as totally inconsistent with Schepp, except to the extent that Schepp might suggest that any retention of control by the general employer is incompatible with the borrowed servant doctrine. We do not so read Schepp, however, as discussed infra.
Likewise, we do not believe that the decision of this court in Huff represents a separate line of authority. There, we noted that the general employer (Belford), "although it did not exercise the right, did not surrender the right to control the details of Huff's work during this trip." Huff, 809 S.W.2d at 73. A close consideration of cases such as Huff, Schepp, Reichert, and Patton, illustrates the perils of attempting to apply broad general rules, such as suggested by the Appellant Huff here, to an infinite variety of circumstances and relationships created between and among general and special employers, particularly where leases of trucks and equipment are concerned. A clo
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