BLACKMAR, Chief Justice.
The plaintiff, an unskilled electrical construction worker, recovered judgment for $1,500,000 on a jury verdict against Gascos-age Electric Cooperative and its contractor, Tel-Elec Company. Both defendants appealed, and the plaintiff appealed from the refusal of his requested punitive damage instruction.1 The Court of Appeals, Southern District, reversed and remanded for new trial, treating the multiple issues in a comprehensive opinion. It transferred the case to us “because of the general interest and importance of a question involved in the ease or for the purpose of re-examining the existing law.” Mo. Const, art. V, § 10; Rule 83.02. We now assume jurisdiction of the entire case as on initial appeal. We affirm on the appeals of Gascosage and the plaintiff, but reverse and remand for further proceedings on Tel-Elec’s appeal. We borrow freely from Judge Flanigan’s well-crafted opinion without using quotation marks.
1. The Facts
On November 1, 1983, the plaintiff, while working as a “groundman,” was seriously injured by an electrical shock. The accident occurred during the course of a renovation project known as the “Iberia Re-[508]*508phase,” which included the installation of 19 new poles to replace the poles supporting a single phase line carrying 7,200 volts of electricity. The new poles, numbered from west to east, spanned a distance of approximately one mile on the north side of, and generally parallel to, Highway 42 west. The single phase line, consisting of one energized line called the “hot phase” and a “neutral,” was to be replaced by a three phase line consisting of three energized lines, or conductors, and one neutral.
On August 16, 1983, Gascosage and Tel-Elec entered into a contract for Tel-Elec to construct the Iberia Rephase. The contract provided that the work was to be done “hot,” that is, with the three phase line being strung while the “hot phase” of the single phase line remained energized so that the electrical service to customers would not be interrupted.
Eazy Construction Company was not a party to the action but played an important role in the litigated event. The precise business relationship between Tel-Elec and Eazy must be determined by further evi-dentiary hearing, but the parties agree that Eazy, and not Tel-Elec, did all the work on the Iberia Rephase, and that the plaintiff had been hired as a groundman by Eazy on October 28, 1983.
The accident occurred in the afternoon of November 1, 1983. The “A” and “C” conductors had been tightened up and the crew was working on the “B” conductor. To remove the excess slack a lineman up in a “cherry-picker” would attach a rope handline to the conductor. The rope ran through a set of pulleys on the pole to a pickup truck to which it was attached. The truck would pull the slack out of the conductor. The excess length of conductor ran down the backside of the pole, and was rolled up on a wire take-up reel.
At the time of the accident plaintiff was tending the wire take-up reel located near pole 1. He had his left hand on the reel and his right hand on the B conductor. While the B conductor was being pulled by the truck it came into contact with the hot phase at a point between pole 9 and pole 10. It became energized and as a result Ballinger sustained serious and multiple injuries.
Plaintiffs trial theory was that the accident was caused by the negligence of Eazy and that Tel-Elec and Gascosage were both vicariously liable for Eazy’s negligence under the “inherently dangerous activity” doctrine. Basing its verdict on Instruction 8, quoted below, the jury found the issues in favor of plaintiff and against Gascosage and Tel-Elec, finding that they were both responsible for the conduct of Eazy and 100 percent at fault, and that the plaintiff was without fault. The verdict assessed his damages at $1,500,000.
The lengthy jury trial was held in October of 1987. In April of 1985, in a proceeding under the Workers’ Compensation Act, the plaintiff had received a lump sum settlement payment of $90,000 in addition to benefits previously received. The transcript of the hearing at which the compromise settlement was approved lists Balling-er’s employer as “Tel-Electric (sic) d/b/a Eazy Construction Company.” That transcript contains a stipulation, to which the plaintiff and his attorney agreed, that on November 1, 1983, he “while in the employ of Tel-Electric, d/b/a Eazy Construction Company, sustained an accident arising out of and in the course of [his] employment.”
Prior to the jury trial, Tel-Elec moved for summary judgment on the ground that the workers’ compensation settlement was a bar to Ballinger’s civil action against Tel-Elec. The plaintiff requested a separate trial on the “workers’ compensation issues,” as did Tel-Elec. Tel-Elec’s motion stated that it was engaged in a joint venture with Eazy at the time of the accident. The trial court ordered a separate trial as sought, and the jury trial was not concerned with the workers’ compensation issues.
After the verdict was returned, the trial court sustained the plaintiff’s motion for summary judgment against Tel-Elec “on the issue of workers’ compensation immunity,” and denied Tel-Elec’s motion for summary judgment. Judgment was entered in accordance with the verdict against both defendants, with a $100,000 credit for [509]*509a prior settlement with a dismissed party. The three parties filed separate appeals.
2. Submissibility
Gascosage has three specifications as to why it considers that the plaintiff has not made a submissible case. The third, absence of evidence of negligence on the part of Gascosage, is ruled adversely to it for the reasons discussed in Part 3 of this opinion. We conclude that the others also lack merit.
Gascosage first asserts that Tel-Elec breached its contract by assigning its whole performance to Eazy, in violation of the contract provision against subcontracting more than 25% of the work. This argument fails for a number of reasons, the most evident being that the contract permitted subcontracting, rather than forbidding it. Gascosage cannot avoid liability simply because Tel-Elec may have exceeded the boundaries of its permission. See City of New York v. Benenson, 41 Misc.2d 20, 244 N.Y.S.2d 653, 657 (N.Y.Civ.Ct.1963). Cf. Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 511-12 (1947) (Employer still liable for employee’s conduct even though contrary to his orders); Baker v. McGue-Moyle Dev. Co., 695 S.W.2d 906, 912 (Mo.App.1984).2
It next argues that there is no evidence that the activity of installing new conductors in the vicinity of an energized line is an “inherently dangerous activity.” It points to evidence that “hot” installations of this kind are a normal part of the installation and renovation of electrical transmission lines and are regularly done without incident. The essence of inherent danger, however, is the need for special precaution. It is not sufficient for the defendant to show that the work can be done safely. For authority we need go no further than Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977), holding that the digging of a narrow vertical trench, which may collapse and cause injury if it is not properly shored, may be found to be an inherently dangerous activity. What is said as to the pressures of a vertical wall of earth applies, a fortiori, to the powerful, speedy and capricious forces of electricity. Hofstetter v. Union Electric Co., 724 S.W.2d 527 (Mo.App.1986), involving a fall from the step of a ringer crane, is not at all in point.
The defendants do not question the sufficiency of the evidence to show that Eazy was negligent. We reject Gascosage’s challenges to the submissibility.
It is argued that there was reversible error in allowing witnesses to testify, over objection, that the rephase project was “inherently dangerous.” We disagree. The phrase consists of words in common use. A question is not necessarily objectionable simply because it is phrased in terms of one of the hypotheticals of an instruction.3 It matters not that the court, in its discretion, might properly have sustained the objection to the question as put.
3. The Instruction on Vicarious Liability
The plaintiff’s verdict directing instruction reads as follows:
In your verdict you must assess a percentage of fault to defendants Tel-Elec and Gascosage, whether or not plaintiff Brent Ballinger was partly at fault, if you believe:
First, the installation of new conductors near the energized conductor at the Iberia rephase was an inherently dangerous activity, and
[510]*510Second, during said installation, Eazy either:
failed to maintain proper clearance between the hot phase and the B phase, or failed to keep the B phase under positive control, or
failed to adequately ground the B phase, or
failed to supply plaintiff Brent Balling-er with rubber gloves, and
Third, in any one or more of the respects submitted in paragraph Second, Eazy was thereby negligent, and
Fourth, such negligence directly caused or directly contributed to cause damage to plaintiff Brent Ballinger.
The term “inherently dangerous activity” as used in this instruction means an activity which necessarily presents a substantial risk of damage unless adequate precautions are taken.
In assessing any percentage of fault to Tel-Elec and Gascosage under this instruction, you must consider the fault of Eazy as the fault of both Tel-Elec and Gascosage.
The defendants argue that this instruction is erroneous under our holding in Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977), in which a plaintiff had obtained a verdict on a theory of contractual assumption of liability. The opinion concluded that that theory was not supported by the evidence but that the plaintiff might be able to make a case under the “inherently dangerous activity” exception to the general rule that a person employing an independent contractor is not liable for the negligence of the contractor. The opinion set forth the elements of this possible claim as follows:
(1) performance of the contract necessarily involves some inherently dangerous activity; (2) the activity which caused the damage was reasonably necessary to the performance of the contract and was inherently dangerous; (3) the one contracting with the independent contractor negligently failed to insure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity; and (4) plaintiffs damage was a direct result of such negligence. Inherently dangerous activity is that which necessarily presents a substantial risk of damage unless adequate precautions are taken. (Emphasis supplied).
Id. at 523.
The plaintiff contends that the third and fourth specifications departed from prior Missouri law in requiring a showing of continuing negligence on the part of the owner, following the employment of an independent contractor to perform an inherently dangerous activity. He adduces the Restatement (Second) of Torts, in the introductory note to § 416-429, reading as follows:
The rules stated in the following §§ 416-429, unlike those stated in the preceding §§ 410-415, do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous to that of a master for the negligence of his servant. (Emphasis supplied).
The plaintiff cites several earlier Missouri cases as being consistent with the Restatement view and inconsistent with Smith, as follows: Loth v. Columbia Theater Co., 197 Mo. 328, 94 S.W. 847, 854 (1906); Carson v. Blodgett Construction Co., 189 Mo.App. 120, 174 S.W. 447, 448 (1915), quoted with approval in Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, 624 (banc 1928); Stubblefield v. Federal Reserve Bank, 356 Mo. 1018, 204 S.W.2d 718, 722 (Mo.1947); Barkley v. Mitchell, 411 S.W.2d 817, 826 (Mo.App.1967). As the court of appeals points out, the Smith opinion cited the last four of these cases as authentic exposition of the Missouri law, without any indication that it was imposing requirements not previously found in the case law. The court of ap[511]*511peals frankly stated that elements (3) and (4) of the Smith formulation are “at war with earlier Missouri case law.” It felt bound to follow Smith, but elected to certify the case here because of the importance of the question.
The defendants understandably heap lavish praise on the Smith opinion. They recognize that the formulation of elements is inconsistent with the Restatement analysis, saying:
Faced with the existence of different rules applicable to this class of cases, the court announced in Smith the rule that Missouri would follow.
They find language in some of the Missouri cases suggesting that a plaintiff who relies on the inherently dangerous activity doctrine must demonstrate continuing negligence on the part of the owner.
Our examination of the authorities persuades us that the analysis of the court of appeals is correct and that the Smith opinion listed elements not previously required by Missouri case law. That opinion wroté beyond the necessities of the case. The principal holding was that the plaintiffs “contractual assumption” submission was not warranted. The elements of a correct instruction were not argued by either party. In an attempt to provide guidance the opinion produced confusion. It is far better to make correction now than to perpetuate an erroneous rule of law. The plaintiff took a risk in requesting an instruction that conflicted with Smith, but we now conclude that the instruction was not erroneous.
We believe that the Restatement correctly reflects Missouri law and that there was no purpose in Smith to change the governing law. Persons are usually held liable for negligence on the part of those they hire to accomplish their purposes. There is an exception for the hiring of independent contractors responsible to the employer for the result bargained for, but not subject to control as to the means of accomplishment.4 The exception does not apply if the work contracted for is an “inherently dangerous activity.”5 For activities of this kind the owner remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious. Thus Gascos-age is liable because it contracted for the work, and Tel-Elec is liable for procuring Eazy to perform the inherently dangerous activity unless it can establish the defense considered in Part 4.
Gascosage takes issue with the definition of “inherently dangerous” in the plaintiffs verdict directing instruction, arguing that the definition should have included additional language submitted by it as follows:
An activity is not inherently dangerous where the risk involved does not arise from the very nature of the activity itself but is a risk which could have been prevented by routine precautions of a kind which a careful contractor would be expected to take.
The definition in the verdict director is taken from Smith and is similar in form to several definitions in MAI.6 The addition suggested by Gascosage, even if it might have some application in other situations, is certainly not appropriate in this case, because the danger arose from the “very [512]*512nature of the activity,” i.e., stringing new electrical conductors in close proximity to an energized, or “hot”, conductor.
Tel-Elec raises the hoary argument of “roving commission” in the disjunctive submission of “failed to keep the B phase under positive control.” We believe that the submission is sufficiently narrow and that it is consistent with the MAI format. The witnesses explained the meaning of “positive control.” Evidence showed that the sagging in the new conductors allowed them to move about uncontrollably and that there were means of controlling the sag. The danger of a mobile line near to an energized line is patent. We entertain no doubt that the jury understood the submission. Nor do we perceive that the term “installation” is so vague as to be subject to the “roving commission” objection. Only one construction project was described in evidence.
4- Closing Argument
The defendants make several claims of prejudicial error during closing argument. Particular complaint is made about the following passage during the plaintiffs rebuttal argument:
MR. STRONG: That is just exactly the point I’m making. Mr. Oliver also said you will determine how much will be paid by the Defendants, and that is not true. There is no evidence in this case that the Defendants will have to pay one penny of any judgment entered. It’s not for you to determine. (Emphasis supplied).
The defendants assert that this is a bald statement that their liability is covered by insurance. The plaintiff suggests that the argument is properly retaliatory.
The trial judge was not unmindful of the problems attending the argument. During voir dire Gascosage tried to prevent the plaintiff from asking the “insurance question,” approved in numerous appellate decisions,7 by submitting an affidavit that nobody connected with its insurer lived in Jasper County. The trial judge rejected this attempt because the submitted affidavit did not cover all possible situations, but instructed the plaintiffs counsel to ask the insurance question simply and inconspicuously. Counsel then asked a single question about jurors’ affiliation with the insurance companies whose several policies provided the defendants’ separate coverage. At that point the reasonably sophisticated jurors undoubtedly knew that there was insurance in the case, and they no doubt so advised their less perceptive colleagues.
Each defendant, during voir dire and the presentation of evidence, made mention of its modest position in the business world. Gascosage’s counsel told the jurors that it had only 18 employees and no engineer. Tel-Elec was described as a family business.
At the beginning of final argument, plaintiffs counsel asked the court to instruct defense counsel not to mention the relatively small size of their clients. The court refused to give explicit direction, but cautioned counsel that argument about small size would invite retaliation. Defense counsel did not make a point of size, but counsel for Gascosage complained about “the kind of money” the jury was asked “to assess against my client” and pleaded for a “fair” verdict for the defendants, and counsel for Tel-Elec argued that the jury would have to decide “how much must be paid by the defendants.” The plaintiff cites these statements in asserting that he had a right to retaliate.
The trial judge overruled the objection to the argument now challenged. The plaintiff may have skated close to the edge, but we conclude that there was no abuse of discretion. We are more impressed with the plaintiffs suggestion that retaliation was in order than with the assertion that the argument did not directly mention insurance. But the incident was singular in a lengthy record and Tel-Elec had surely intimated that the defendants would have to pay whatever judgment the plaintiff [513]*513might recover. When there are co-defendants, counsel for one may sometimes open a door which permits the wind to blow on both. As has been said earlier, the presence of insurance was.no secret. This does not give the plaintiff license to flaunt insurance coverage in the jury’s face, Rytersky v. O’Brine, 335 Mo. 22, 70 S.W.2d 538 (1934), often cited, but the trial judge apparently thought that brief retaliatory argument was in order on a matter as to which he had expressly cautioned the parties. With hindsight we might say that he could have avoided further trouble by sustaining the objection and directing the jury to disregard the argument, but he clearly believed that the defendants had not heeded his warning. We are unwilling to substitute our judgment for his studied conclusion. Cf. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787-88 (Mo. banc 1977).
Complaint is also made of plaintiff’s saying to the jury that there was nothing in the instructions
that says when you assess the total amount of damage to Brent Ballinger, you need to try to be fair to the defendants or anyone....
It is suggested that this is a misstatement of the law, and particularly that portion of MAI 4.01 which states that the jury must determine “such sum as will fairly and justly compensate plaintiff for any damages you believe he sustained.”
Counsel went on to say that it
doesn’t make any difference whether [the verdict] is fair or unfair to a defendant or a plaintiff. It's then the judge’s job to enter a just judgment.
We do not believe that these passages, even with objection overruled, require reversal. The emphasis in the instruction is on fair and just compensation. It makes no difference who the parties are. When the defendants’ counsel pleaded for fairness to their clients plaintiff’s counsel took occasion to remind the jury that the instruction called for abstract fairness. We believe that the trial judge appropriately refereed the fray and was not obliged to blow a faster whistle.
The other complaints about closing argument are not substantial. We do not believe that the plaintiff’s suggestion that the judge would enter a proper judgment necessarily implied that remittitur might be available. There was an offset and the defendants had claimed contributory fault. The statement that the jury should not be concerned about the ultimate recovery or how it would be apportioned between the defendants is legally correct. The trial judge appropriately told counsel to let the matter drop. We also believe that the plaintiff’s counsel’s intimation that the plaintiff’s wife might be upset if required to testify about her husband’s agonizing injuries was an appropriate response to the defendants’ assertion that an adverse inference could be drawn from the circumstance that she was not called to testify.
We do not accept the plaintiff’s argument that the mention of insurance is prejudicial only if the size of the verdict is challenged. A jury may be more likely to find disputed liability against a defendant it believes to be insured.8 But here the evidence of liability is strong and the damage award is not out of line, considering the severity of the injuries. These are circumstances to be considered in assessing prejudice.
5. Liability of Tel-Elec
As has been said, Tel-Elec sought to show that the workers’ compensation statutes relieved it of liability to the plaintiff. The trial court held to the contrary, finding that Tel-Elec was jointly liable with Gas-cosage on the basis of Boswell v. May Centers, Inc., 669 S.W.2d 585 (Mo.App.1984). We now conclude that the summary judgment against Tel-Elec was improvidently entered and that there are issues requiring a trial. Although the plaintiff has assumed the burden of briefing the [514]*514point, our disposition is such that the question of Tel-Elec’s liability is now of interest only to the two defendants.
Tel-Elec argues that its undisputed showing in support of the motion for summary judgment demonstrates that it was engaged in a joint venture with Eazy, and that a joint venturer is entitled to the protection of the workers’ compensation laws, § 287.120, RSMo 1986, when a tort claim is made against it by an employee of its co-venturer. It falls back on the argument that its defense presents genuine issues of fact, so that the court erred in sustaining the plaintiff’s motion for summary judgment.
It is agreed that the plaintiff was an employee of Eazy and not of Tel-Elec when he was injured. There was no showing of a written assignment or subcontract. Apparently Tel-Elec got the bid and Eazy proceeded to do the work. The affidavit of Earnest Hubnik, principal officer of both corporations, to which plaintiff filed no counter-affidavit, stated, among other things, the following: Tel-Elec was incorporated in Texas in 1978, under the name of Tel-Elect Company. The name of Tel-Elect Company was changed to Tel-Elec Company in 1979. Eazy was incorporated in Texas in 1979. At all relevant times Tel-Elec and Eazy “shared common officers, directors and shareholders, and performed power line construction work.” The standard practice had been for Tel-Elec to make bids on its own behalf and on behalf of Eazy for certain projects having Eazy on the list of approved bidders. This practice was followed on the Iberia Re-phase where the intention was for Eazy and Tel-Elec to perform all of the work on the project as partners in a joint venture.
The affidavit also stated: With regard to the Iberia Rephase, Tel-Elec and Eazy shared a common group of employees “and also shared equipment, resources, materials, funding, tools, payrolls, independent contractors, outside consultants, hiring and firing policies, project management and control, workers’ compensation insurance coverage, banks, accounts payable, accounts receivable, profits and losses, employee handbooks and training manuals, and numerous other assets and resources.” Work on the Iberia Rephase was performed by a group of employees common to Tel-Elec and Eazy. Employees were paid by checks issued on the accounts of Tel-Elec and Eazy, and Tel-Elec and Eazy considered themselves as one joint venture enterprise for all purposes involved in the performance of the Gascosage contract.
The affidavit continued: No contract or subcontract existed between Tel-Elec and Eazy involving the Iberia Rephase. At no time did either company delegate to the other any responsibility for any performance under the Gascosage contract. At no time did either company assign to the other any rights under the Gascosage contract. Neither company paid the other for any rights, responsibilities, privileges, or liabilities under the Gascosage contract. Tel-Elec did not pay Eazy and Eazy did not pay Tel-Elec for use of the other’s employees, equipment, tools, supplies, liability or workers’ compensation insurance during the performance of the Iberia Rephase. Management decisions for Tel-Elec and Eazy regarding the use of equipment, employment of personnel, and assignment of work crews to the Iberia Rephase were made as joint decisions by “essentially the same persons.” During the Iberia Rephase Tel-Elec and Eazy were covered by a workers’ compensation insurance policy issued by the same insurance carrier.
Tel-Elee’s arguments must be considered against a background of principles which have been enunciated in Missouri cases and which the trial court should have in mind in resolving the factual and legal issues on remand.
Any rights which the plaintiff might have had at common law are supplanted and superseded by the workers’ compensation act, if it applies. Whether or not the case comes within the provision of the act is a question of fact. Jones v. Jay Truck Driver Training Center, 709 S.W.2d 114, 115 (Mo. banc 1986). An injured plaintiff may file an action at common law. The defendant may assert by motion or answer that the court lacks jurisdiction of the sub[515]*515ject matter because plaintiff was an employee when injured. Rule 55.27. The court may hear the matter in the manner permitted in Rule 55.28. If the court finds jurisdiction the parties may proceed to trial. If it finds no jurisdiction, the plaintiff may appeal. Jones, 709 S.W.2d at 116[1, 2]. Inasmuch as the workers’ compensation proceeding had concluded before the jury trial was held, we do not have to decide whether any principle of prior resort to administrative remedies applies.
A final workers’ compensation award determines the rights of the parties as effectually as a judgment. The award may be set aside or questioned only through the statutory review procedures. State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen’s Compensation Comm’n, 320 Mo. 893, 8 S.W.2d 897, 900[8] (1928). An injured employee who has accepted benefits paid by his employer in compliance with the compensation act cannot maintain a tort action against his employer. This is so even though plaintiff had filed no compensation claim and the employer was neither insured nor qualified as a self-insurer under the compensation act. Plaintiff’s retention of the compensation benefits constitutes an election precluding the maintenance of the “inconsistent” tort action. Neff v. Baiotto Coal Co., 361 Mo. 304, 234 S.W.2d 578 (1950). An award of the Industrial Commission may be res judicata in a subsequent tort action between the parties. Hines v. Continental Baking Co., 334 S.W.2d 140, 141[1] (Mo.App.1960). The employer-defendant has the burden of establishing the bar of the Workers’ Compensation Act as an affirmative defense. Id. at 142-143. See also Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932[3] (Mo.App.1978).
An unappealed final award of the Industrial Commission under the Workers’ Compensation Act, whether right or wrong on a fact issue within the jurisdiction of the commission, is as effective an adjudication of the rights of the parties as a judgment of a court and is impregnable to collateral attack. Scannell v. Fulton Iron Works Co., 365 Mo. 889, 289 S.W.2d 122, 124 (1956). Collateral estoppel precludes the reexamination of previously litigated issues of fact or law, even if the prior judgment was erroneous. Sunshine Realty Corp. v. Killian, 702 S.W.2d 95, 99[2, 3] (Mo.App.1985). Judgments, including judgments by agreement, are conclusive of matters adjudicated and are not subject to collateral attack except upon jurisdictional grounds. Moore v. Beck, 664 S.W.2d 15, 18 (Mo.App.1984).
A joint venture is a species of partnership and is governed by the same legal rules. Both partnerships and joint ventures may be created informally.9 A joint venture is said to differ from a partnership in that it is usually limited in scope. Anderson v. Steurer, 391 S.W.2d 839, 843[4] (Mo.1965). There a plaintiff brought a tort action against defendant Steurer. He had previously received workers’ compensation benefits from his employer Stroup. If Stroup and Steurer were engaged in a joint venture, the plaintiff in legal effect was an employee of both and could not maintain the tort action against Steurer as a negligent third person. Liability would be under the Workers’ Compensation Act exclusively. Id. at 843. See also Rhodes v. Rogers, 675 S.W.2d 107, 109 (Mo.App.1984), holding that a partnership employee who has received workers’ compensation benefits may not maintain a negligence action against one of the partners on account of on-the-job injury; and Bailey v. Morrison-Knudsen Co., 411 S.W.2d 178, 181 (Mo.1967), holding that an employee of a subcontractor may not receive common [516]*516law damages from a principal contractor, for injuries covered by workers’ compensation.
Plaintiff argues that, even if Tel-Elec and Eazy were engaged in a joint venture, a related corporation cannot avail itself of a sister corporation’s workers’ compensation immunity, citing Boswell v. May Centers, Inc., 669 S.W.2d 585 (Mo.App.1984). There the plaintiff was an employee of May Department Stores, Inc., and he had filed and settled a workers’ compensation claim against his employer. Centers filed a motion to dismiss on the ground that the compensation claim was plaintiff’s exclusive remedy. Centers was a wholly owned subsidiary of May. The trial court sustained Centers’ motion for summary judgment and plaintiff appealed.
The most obvious distinction between Boswell and the ease at bar is that in Boswell the compensation claim was made against May and the tort action was brought against Centers. Here it may be argued that both the compensation claim and the instant tort action were brought against Tel-Elec.
There was no claim in Boswell that Centers and May were joint venturers or that plaintiff was injured during the course of a joint venture. May ran a department store and Centers operated a parking lot. The duty of maintaining the later was “solely that of [Centers].” Portions of the Hubnik affidavit indicate that such may not be the ease here. The nature of the business conducted by May and by Centers was “distinct and unrelated.” According to the affidavit, neither Tel-Elec nor Eazy was the wholly owned subsidiary of the other. The manner in which Eazy and Tel-Elec operated, specifically on the Iberia Rephase, may have been one of total integration. So Boswell is not necessarily in point.
There may be unintended consequences when people make informal use of the corporate forms or enter into contractual relationships without defining their arrangements with precision, but subcontracting arrangements are common, and there is nothing illegal or sinister about a joint venture. There is nothing in the instant, admittedly limited, record which demonstrates any policy reason why Tel-Elec and Eazy should not enjoy such immunity from tort liability as is appropriate to their legal arrangement, as it may further be defined by the circuit court.
The plaintiff argues that there is no evidence that “Tel-Electric, d/b/a Eazy Construction Co.,” is the same entity as the defendant “Tel-Elec Company.” In Anderson v. Steurer, the tort defendant was held to be entitled to immunity even though the compensation had been paid by the other joint venturer. The misnomer of a defendant in the first action does not prevent the judgment in that action from barring a second action between the same parties on the same claim. Youngblood v. Grand Trunk Western Ry. Co., 239 Mich. 136, 214 N.W. 154, 155[2] (1927); 50 C.J.S. Judgments § 768, p. 298, n. 71. In Young-blood the court said: “Simply because the misnomer was waived by defendant, it does not follow that plaintiff can take advantage of his own error. The former judgment must be held to be res judicata of the present ease.”
Hubnik’s affidavit shows that there is evidence from which the trial court could find that there was a joint venture between Eazy and Tel-Elec. A subcontracting arrangement might also be found. There is, additionally, evidence to support a finding that the plaintiff accepted workers’ compensation benefits from Tel-Elec, confirmed by a final order of the Commission. It would be of interest to know whether the workers’ compensation liability of Tel-Elec and Eazy was covered by the same policy and how they reported their income on federal and state tax returns.
But we are unable to hold on the record before us that the trial court erred in denying Tel-Elec’s motion for summary judgment. Its brief concedes that this Court might properly feel that the materials before it, including the Hubnik affidavit, may contain too many gaps and conclusions to allow us to determine the issue without trial. Remand is appropriate to determine whether Tel-Elec and Eazy were engaged in a joint venture, whether Eazy was a [517]*517subcontractor of Tel-Elee, and whether the plaintiff accepted workers’ compensation benefits from Tel-Elec. Any of these findings would preclude common law liability.
6. Punitive Damages
The plaintiff requested an instruction on punitive damages which the trial court refused. He appeals the refusal.
The requested instruction deviated from MAI 10.02, in hypothesizing facts in addition to those submitted in the verdict directing instruction. The defendants pounce because of the variance, asserting the familiar proposition that there is no error in refusing a requested instruction which is not meticulously correct.10 The plaintiff counters with the suggestion that he did not believe that the bare facts hypothesized in the verdict director would justify a submission of “reckless and wanton conduct” such as is required when punitive damages are sought in a negligence case. He then asserts that there is no legal error in the requested instruction because he simply assumed an additional burden.
We do not have to decide whether the instruction is correct. Nor do we have to decide whether the facts would justify a punitive damage submission. We conclude that when a claimant seeks to impose vicarious liability through the use of the “inherently dangerous” doctrine, and when there is no viable claim that the defendants themselves were negligent,11 punitive damages may not be recovered.
The plaintiff points to cases holding that punitive damages may be recovered when an employer is sued for the negligence of an employee12 and when a partner is sued for the negligence of another partner.13 We recognize these authorities, but distinguish the case before us. In the usual master-servant situation the imposition of vicarious liability serves two purposes. It places liability for causing harm on the person who stands to benefit from the commissioned activity and also provides motivation for careful supervision. The master has the right of control. The same principle could apply to partners, who have equal authority to direct the partnership business.
When an independent contractor is retained the right of control is lacking. So the imposition of vicarious liability serves the purpose of making a person who contracts for an inherently dangerous activity liable for the damage caused by the contractor’s negligence in dealing with the inherent danger, but we perceive no desirable social purpose in requiring the person who retains an independent contractor to exercise continuing control. There is no claim here of negligence in the selection of the independent contractor, who, presumably, is more skilled than the owner in managing the details of the activity. Nor can it be said that the contracting for inherently dangerous activities is necessarily undesirable. Often, as here, the activity has a beneficial social purpose. In balancing the interests of the parties and the public we see no reason for imposing vicarious liability for inherently dangerous activities in excess of actual damages.'
In Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268, 283-84 (1988) the court held that the present and former owners of property, although liable for actual damages arising out of the storage of hazardous materials on the property, were not liable for punitive damages because the conduct of neither rose to the level of “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that [518]*518his conduct probably would cause injury to another.” The reasoning of that case supports our holding.
There are several other claims of trial error which are so insubstantial that we do not need to prolong this opinion by discussing them.
Conclusion
The judgment in favor of the plaintiff and against Gascosage is affirmed.
The judgment against Tel-Elec is reversed and the case is remanded for a trial of the question of Tel-Elee’s liability.
RENDLEN, HIGGINS and COVINGTON, JJ., and SATZ, Special Judge, concur.
ROBERTSON and BILLINGS, JJ., concur in part and dissent in part in separate opinions filed.
HOLSTEIN, J., not sitting.