LARSON, District Judge.
This is a tort case and jurisdiction is based on diversity of citizenship and the required amount. The plaintiff allegedly entered the employ of Manpower, Inc. (Manpower) some short time prior to July 21, 1961.
The plaintiff and defendant make various allegations as to some of the other terms of the oral contract. The relevant allegations will be considered in this opinion and the others will not.
The important facts which are not in dispute are that the plaintiff was sent to the defendant to clean a barge on July 21, 1961, that while he was performing the task of cleaning the barge he stopped and assisted some other employees who were engaged in manipulating a large cover with a crane, the cover fell, and the plaintiff was severely injured. Negligence is alleged. The question here is whether the plaintiff is barred from a tort action by virtue of being an "employee" of the defendant insofar as the Workman's Compensation law is concerned. The plaintiff alleges that he was only the employee of Manpower and that the defendant is a third-party tort-feasor which he can sue in tort under the applicable statutes of this State. The defendant alleges that it had full control over the details and manner in which the work of the plaintiff was to be done. The plaintiff (1) denies "control" by the defendant and (2) says that in any event the question is one for the jury. The defendant has moved for a summary judgment under Rule 56.
The summary judgment rule says, inter alia, that courts and defendants are not to be burdened with the trying of actions which at the outset can be reasonably considered to be destined for failure. The Courts of Appeal have made it clear that summary judgments are not to be granted readily. On the other hand, courts and defendants are not to be unduly harassed. With these considerations in mind, the question will be approached: Are there any genuine issues of fact and is the defendant entitled to a judgment as a matter of law?
At the outset of the plaintiff's brief the following "fact" appears as a term of the oral contract:
It is obvious that this is an argumentative statement, but beyond that it seems to draw an extremely fine distinction and this distinction will be considered in more detail later. The plaintiff is trying to get his case to the jury and is not in any way to be criticized for this. However, it would seem that this Court would be better advised to use such technical words as "control" only to state the issues, define the law, and reach the conclusions, lest clear analysis of the facts
The law is clear. If the plaintiff was injured within the scope of his employment while he was an "employee" of the defendant, then he is barred by the applicable Workman's Compensation statute from bringing this action. 13 M.S.A. § 176.01 et seq. The Courts of this State have applied the test of "control" to determine whether one person was the "employee" of another. See cases cited in 13 M.S.A. § 176.01 at note 75. "Control" has in fact been recently said to be the most important single factor. Krause v. Trustees of Hamline University of Minn., 243 Minn. 416, 68 N.W.2d 124 (1955). The test, of course, must be applied to the facts, which in this case means that the economic realities underlying the agreement between Manpower and defendant must be ascertained.
The only thing that is clear at the outset is that Manpower was to send personnel to the defendant to do work. In the plaintiff's brief (p. 5) it is said:
This is a bold argument. It should be examined closely. It will be observed that inserted in the details of clerical work which Manpower was to perform is the statement that Manpower had the right to "instruct the men when and where to go and the type of work to be done." and to "regulate the actions of its men." This is a somewhat misleading statement because it might cause the reader to think that it was the business of Manpower which was being performed on the barge and not that of the defendant. The reader might think that Manpower had more interest and concern in the barge than did the defendant. If this impression exists it should be corrected. In this case the plaintiff does not seem to have been told when he left Manpower that he was to go to the defendant and clean barges, but let us assume that he was given very explicit directions as to what to do. Where did these directions come from? Where, in short, did the "control" originate; where did it all start? Now it is certain that Manpower, if it wishes, can hire people and send them places to do things that Manpower would like to see done and that the owners of the property would not object to being done. Is Manpower some sort of a charitable organization like the Red Cross? That has not been argued. Now it is also certain that Manpower, if it wished, can hire people and send them places to do things which it would like to see done even though the owners of the premises objected to it. Is Manpower some sort of an officious intermeddler? That has not been argued. It would thus seem that the impetus of the whole affair—the origin of the idea that certain work needed to be done—the embryo of the "control"—began with defendant and not Manpower.
Plaintiff and other personnel were sent by Manpower to clean barges under the control of the defendant. Manpower just provides temporary help for a fee. Manpower had no interest in the barge. Plaintiff went to the defendant because the defendant needed some temporary help. Manpower was in the business of selling temporary help, and the defendant wanted to buy some. That is why the plaintiff went to the barge on that fateful day, and it seems patently clear that any argument to the contrary would
A description of what happened on the barge appears in the plaintiff's brief (p. 10) and is as follows:
It will be observed that the plaintiff has used the words "requested" and "asked" to describe the communication which led the plaintiff to proceed to the fateful task. It may very well be that the plaintiff was "asked" to lift the barge cover, but the question here is whether the defendant could have simply told him to do it without being polite about it. The plaintiff seems well aware that this is the issue, because elsewhere in the plaintiff's brief (p. 6) appears the following statement:
This seems an accurate statement of law, and it should be kept in mind in the following discussion. The plaintiff's brief also cites the case of Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951) and has emphasized the following words among others:
The words of command and request call to mind an example which will illustrate the difference between the two words in a situation of this sort. It is dangerous to hypothesize, but let us first assume that when this plaintiff went to defendant from Manpower, defendant thought that the plaintiff was an ordinary manual laborer. Without meaning to demean the plaintiff, his wage rate of $1.05 per hour would indicate that defendant thought that he was only capable of doing ordinary work and that their agreement was that Manpower was only selling the efforts of an ordinary laborer. Now let us suppose that when the plaintiff arrived at the barge in question casual conversation brought out the fact that he was capable of operating a welding machine which required a high degree of skill. Could defendant have commanded the plaintiff to work for several hours at work for which defendant would otherwise perhaps have to pay an hourly wage of four dollars? It would seem not. As the plaintiff points out in one of the previously quoted statements, "The right to select one's employer is implicit in freedom from involuntary servitude." The relevance of that statement here is that by coming to the barge and starting to clean it, the plaintiff—in the eyes of the law—had selected his ultimate employer (the defendant) and the job which he would do (ordinary labor). His freedom to resist orders to do any high-skill
It would seem that the defendant in this hypothetical would have two alternative courses of action if it wished to get the welding done. It perhaps could call Manpower, tell Manpower the situation, make a new contract with Manpower, have Manpower make a new contract with the plaintiff, and then "command" the plaintiff to do the welding. The other alternative would be to "request" the plaintiff to do the $4 per hour welding for his $1.05 wage. Assume in the latter case that the welding machine exploded as a proximate cause of the negligence of defendant. Could the plaintiff then have sued defendant as a third-party tort-feasor? The case is not before this Court, but it seems that he might recover because defendant could not have "commanded" him to do the welding but could only "request" it. There is quite some difference in laying down a broom and picking up a welding machine. The latter task calls for a skill that the parties to the contract did not contemplate that the plaintiff had and that he was not obligated to perform. It is something else to simply lay down a broom or a shovel or whatever was being used and pick up a barge cover. Both tasks seem to call for the same level of skill that Manpower was selling to defendant for the gross rate of $1.71 per hour. The agreement of the parties— which has been so vigorously pressed upon this Court—would seem to give defendant the right to command the plaintiff to pick up a barge cover as well as to push a broom. It has not been argued here that defendant, prior to ordering the plaintiff to pick up this cover, should have stopped and asked Manpower for permission. It seems to this Court that most if not all businessmen in the situation of defendant would have assumed that an employee who is receiving a wage of $1.05 per hour could be commanded to pick up a barge cover as well as push a broom. The converse of this proposition is that the defendant did not have to "request" (to use the legal conclusion word) the plaintiff to pick up the barge cover. The reason is that both tasks involve manual labor and manual labor is what the defendant was buying and what the plaintiff was selling, with Manpower as a mere agency to facilitate the transaction by performing all the clerical tasks previously mentioned. Therefore it seems that the defendant had the right to tell the plaintiff to help with the barge cover and the plain truth of the matter is that the plaintiff did do as he was told. There has not been a murmur of argument in this case in support of the proposition that the plaintiff did not have to do as he was "requested." All the facts are to the contrary. The deposition of the plaintiff was as follows: (p. 11):
This question was, of course, put by the counsel for the defense, but later in the deposition the following questions were put by the plaintiff's counsel (pp. 54-55):
This question came at the end of the deposition and the reporter apparently missed the answer, but there can be little doubt as to the answer to this question phrased by the plaintiff's own counsel. It is patently clear that the plaintiff was merely an ordinary laborer. The plaintiff's statements about the defendant "requesting" and "asking" the plaintiff to lift this barge cover are not only unsustainable from a legal point of view, but are sadly undermined by the plaintiff's
Almost the same words were used by the plaintiff later in the deposition. (pp. 31-32):
All that has been said shows that the plaintiff was injured within the scope of his employment while under the "control" of the defendant and no reasonable jury could find otherwise. It follows that the plaintiff is barred from bringing a negligence action against defendant. The reason is that—for purposes of the Workman's Compensation law— defendant was the employer of the plaintiff. Defendant had control of the plaintiff in the circumstances present here and had the right to command the plaintiff to lift the barge cover.
The essence of the matter is that the plaintiff is trying to get his Workman's Compensation from one employer and a tort recovery from someone else allegedly outside the employment relationship. The plaintiff here is trying to say that a person can only have one employer. The plaintiff here had two employers, but they performed different functions. Manpower solicited the employees in the first instance, kept the books, and did all the clerical work. To use a figure of speech, Manpower was manufacturing a commodity, which in this case was manual labor free from the need for clerical service. Manpower sold the manual labor to the defendant, which used it to perform tasks normally accomplished by manual labor. The plaintiff is trying to describe this situation as one in which there were two parties present when he got hurt—his employer and a third-party tort-feasor. But the depositions of the plaintiff showed what common sense would have suggested: No one from Manpower ever accompanied the plaintiff or his brother to the barge site. The following questions were asked the plaintiff, p. 13:
An earlier question was to the same effect, p. 11:
Later in the deposition the plaintiff was asked, p. 14:
Further in the deposition the plaintiff was asked, p. 41:
These facts must be compared with the plaintiff's brief which is as follows:
It is enough to say that this bold argument is demolished by the plaintiff's own words in the above deposition.
It is plain that there was no "third party" present where the plaintiff got hurt; the only "person" there was the "employer"—the defendant, as represented by its agents and employees. The plaintiff was the employee of Manpower —and that has never been disputed—but he was also the "employee" of the defendant insofar as this case is concerned, i. e., for the purposes of the Workman's Compensation law. The simple three-party relationship presented here should not be hard to understand. In addition, it should not be distorted and confused by talk of "supervision and control" on the one hand and "designation of work" on the other. The facts simply do not afford a basis for the use of such terminology. It is conceded that Manpower hires these people. It is conceded that Manpower can refuse to employ them on subsequent occasions and in that sense it can fire them. But could Manpower leave its downtown office, go onto the barge being cleaned by the defendant and tell plaintiff and his brother or others like them to lay down their brooms because Manpower was firing them? Manpower perhaps
This brings up the final and most damning fact. What do the defendant and others who use the services of Manpower get when they buy the commodity that Manpower is selling? In this case the plaintiff received a wage of $1.05 per hour but defendant had to pay $1.71 per hour to get the plaintiff from Manpower. What did the defendant pay that $0.66 differential for? It is a plain fact that the defendant did not get any brooms pushed for that money. What did defendant pay for? Were they enticed to pay this extra money because the salesman from Manpower had a good personality? Not likely! The facts are clear. Defendant has alleged that Manpower had Workman's Compensation in force at the time this accident occurred. Not only was this fact not denied, but it was admitted in open court that the plaintiff has in fact been receiving this compensation. In order for Manpower to have this accident insurance it had to pay a premium. Where did the money to pay this premium come from? Manpower takes in money from only one source—the employers who use its services. Emerging from the confusion caused by the "borrowed servant" and "common purpose" doctrines one fact is becoming clear: There is more than a vague connection between the extra $0.66 per hour paid by defendant and the Workman's Compensation which this unfortunate plaintiff received. Part of that $0.66 per hour will pay someone's premium, and in the eyes of the law it must be deemed to have paid the premium for this plaintiff. In other words, the plaintiff is suing in tort the man who paid for his Workman's Compensation. The defendant paid part of this extra $0.66 per hour for the sole and express purpose of assuring that employees which Manpower sent over for temporary employment would be covered by Workman's Compensation. The defendant paid part of this extra $0.66 per hour for the sole and express purpose of not having to defend actions such as the one which has been brought here. This case strikes at the heart of the Workman's Compensation law; this case is in unequivocal opposition to the well-known principles on which Workman's Compensation is founded.
It is therefore the opinion of this Court that where the primary employer (Manpower here) does no more than provide personnel for the use of the ultimate employer (the defendant here), where the fees received by the primary employer from the ultimate employer include provision for Workman's Compensation coverage for the employees supplied, where this Workman's Compensation was in force at the time of the accident, and where the injury occurred (1) while the employee was under the control of the ultimate employer (the defendant here) and (2) while the employee was engaged in a task which all the parties (the plaintiff, the defendant and Manpower) must be deemed to have contemplated that the employee would perform (i. e., while the plaintiff was within the scope of his employment), then the injured employee cannot sue the ultimate employer as a third-party tort-feasor.
In this case that means that the defendant is entitled to a summary judgment, for there are no genuine issues as to the facts.
The plaintiff appears to have sustained severe injuries. It may be that the compensation provided plaintiff by the Workman's Compensation law is not adequate. This problem, however, is not for the Court but for the Legislature.
As stated in the Order, the motion by defendant for Summary Judgment is granted.