 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Shurvington v. Cavender Drywall1/30/2001
wed servant' defense to the workers' compensation claim is not available to the general employer. Huff, 809 S.W.2d at 73 (emphasis added). There was evidence that Cavender did not retain "some control" over Shurvington as he went about the work for which he was lent. "The core of the 'borrowed servant' defense is that the general employer has surrendered to the borrower all control over the employee, so that the employee has become, with respect to the work for which he was loaned, exclusively the employee of the special employer." Id. (emphasis added). The control at issue is the control over the employee's actions on the job at the time of the injury. Reichert, 504 S.W.2d at 186.
Again, there was evidence that Cavender indeed surrendered all control over Shurvington with respect to the work for which he was loaned. From the evidence in the record, we conclude that the Commission could have found that Cavender completely surrendered control of Shurvington for the purposes of the Huff drywall job and that Huff had complete control over the details of the work.
Consent
For a worker to be a borrowed servant, he must himself have consented, expressly or impliedly, to leave the employ of the general employer and become, for purposes of the work at hand, the employee of the borrowing employer. Erwin v. Polar Express, 776 S.W.2d 458, 460-61 (Mo. App. 1989) (emphasis added). Our review of the record reveals no express consent by Shurvington to leave the employ of Cavender, the general employer. If there was consent, then, it must be implied. Id. The employee's consent may be inferred from his acceptance of and obedience to orders given by the special employer. Ellegood, 162 S.W.2d at 633. Restated, the "consent of the employee may be implied from his action in proceeding with the employment, his general acceptance of it, and his obedience to orders." Ballard v. Leonard Bros. Transp. Co., Inc., 506 S.W.2d 346, 351 (Mo. 1974). We are aware of the holding of Schepp, that "the mere physical act of performing some service that is the 'work of and for' the special employer, pursuant to the command of the general employer does not alone justify the inference of 'consent,'" which "must be inferred solely from the fact that, in obedience to the orders of his general employer, claimant accepted and responded to [the special employer's] instructions, directions and rules; that he stated [the special employer] was his 'boss' for the day; and that he knew about the 'arrangements' and 'consented going' (because he had to -- if he wanted to work)." Schepp, 291 S.W.2d at 642. (Internal citations omitted). We find Schepp factually distinct from the case at bar. There, (1) the general employer retained the right to discipline or discharge the employee, whereas the special employer had no such right; (2) the general employer ordered the employee to report to work for the special employer on penalty of not working if he did not report; and (3) the special employer had no say as to which employee reported to it for work. In the present case, on the other hand, Shurvington did not report to Huff by order of Cavender. He testified that he did not want to lose pay for three days, that his choices were to stay home and lose pay for the three days Cavender could not pay him, or to work for Huff for those three days for wages. He chose the latter. He accompanied Huff to the Huff jobsite, received detailed instructions as to how to complete the job, and he did not receive any instructions from Cavender about details of work to be done at the Huff job. By reporting to work at the Huff jobsite and proceeding with the work, he accepted and obeyed the orders given by Huff. Huff alone had the right to discipline or discharge
Page 1 2 3 4 5 6 7 Missouri Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|