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Shurvington v. Cavender Drywall1/30/2001
se reading of the facts illustrates many differences, including the salary and payor, the provision of maintenance and payment of expenses, the name on trucks, and even differences as to whether the lessor or lessee is the general employer.
What does seem consistent, in our view, is a central requirement that each case be analyzed upon its facts regarding the issues of control and consent. Thus, in Huff, we think it significant that the general employer, Belford, had not relinquished the right to control the driver's means and method of doing his work and could have replaced him or removed him from that work and substituted another at any time. These factors are similar to those in Schepp, where the general employer with similar control remained liable. And they are not inconsistent with those in Patton, where the special employer was held liable because he had the right to control when and where the driver stopped for the night (he was asphyxiated in a motel room). Nor do we find Stone inconsistent with those principles. The court in Stone found a "joint employment." We do not read Stone as requiring such a finding in every case where both the general and special employer have some control.
Most importantly, we do not find many of the trucking cases particularly helpful because, so often, they turn upon the particular lessor-lessee relationship between the parties. Those cases are only helpful to the extent that they state and discuss the basic principles of analysis and demonstrate the factual nature of the issue in each case.
Nor do we find Wright v. Habco, 419 S.W.2d 34 (Mo. 1967), inconsistent with the principles discussed above, or for that matter particularly helpful. There, the general employer was a temporary help agency which provided employees to Habco. The employee there never performed any work for the general employer (the manpower agency). The sole reason for his employment was to work for the special employer and at the specific direction of the special employer.
The holding in Huff is that " f the general employer retains some control over the employee as he goes about the work for which he has been lent and borrowed, the 'borrowed servant' defense to the workers' compensation claim is not available to the general employer." Huff, 809 S.W.2d at 73 (emphasis added). Appellant Huff in the present case misunderstands the very important distinction, however, between that case and this one. In Huff, the court found that the general employer continued to exercise some control over the employee: a) its name was positioned on the truck the employee was driving; b) it was responsible for the lawful operation of the truck and could have placed restrictions on the employee while he was operating it; and it could have discharged the employee while he was on the trip and halted the continuation of the trip until another driver could be found. Here, on the other hand, there was evidence that the general employer (Cavender) did not provide the tools by which Shurvington performed his work for Huff, nor could he have claimed or exercised the right to supervise Shurvington as he went about his work for Huff, nor could he have discharged Shurvington from the Huff job, though he could have discharged him from his own employ. Moreover, " he principal question is not whether [Shurvington] remained the servant of [Cavender] as to matters generally, but whether, when the accident occurred, he was performing services essentially for [Les Huff] which [Les Huff] had the right to control or direct." Reichert, 504 S.W.2d at 186.
"If the general employer retains some control over the employee as he goes about the work for which he has been lent and borrowed, the 'borro
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