Archer Freight Lines, Inc. v. Horn Transp., Inc., 72--248

• Decision Date: 17 July 1973
• Docket Number: No. 72--248,72--248
• Citation: 514 P.2d 330,32 Colo.App. 412
• Parties: ARCHER FREIGHT LINES, INC., and Truck Insurance Exchange, Petitioners and Cross-Respondents, v. HORN TRANSPORTATION, INC., and Commercial Standard Insurance Company, Cross-Petitioners and Respondents, and Director of Division of Labor, Department of Labor and Employment of the State of Colorado, et al., Respondents. . II
• Court: Colorado Court of Appeals

Page 330

514 P.2d 330

32 Colo.App. 412

ARCHER FREIGHT LINES, INC., and Truck Insurance Exchange Petitioners and Cross-Respondents, v. HORN TRANSPORTATION, INC., and Commercial Standard Insurance Company, Cross-Petitioners and Respondents and Director of Division of Labor, Department of Labor and Employment of the State of Colorado, et al., Respondents.

No. 72--248.

Colorado Court of Appeals, Div. II.

July 17, 1973.

Rehearing Denied Aug. 8, 1973.

Wolvington, Dosh, DeMoulin, Anderson & Campbell, William P. DeMoulin, Denver, for petitioners and cross-respondents Archer Freight Lines, Inc. and Truck Ins. Exchange.

Wood, Ris & Hames, F. Michael Ludwig, Denver, for cross-petitioners and respondents Horn Transportation, Inc. and Commercial Standard Ins. Co.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents Director of Division of Labor, Dept. of Labor and Employment of the State of Colo. and The Industrial Commission of Colo.

Richard T. Goold, Denver, Gerald M. Madsen, Littleton, for respondents claimants in the Matter of the Death of William S. Jones.

DWYER, Judge.

This is a petition to review a final order of the Industrial Commission awarding death benefits under the Workmen's Compensation Act of Colorado.

Decedent, William S. Jones, was the owner of a commercial tractor used for hauling freight. Decedent furnished his tractor to Horn Transportation, Inc., (Horn) under a long term lease and agreed to operate the equipment for Horn. On March 16, 1971, decedent was dispatched to Archer Freight Lines, Inc., (Archer). Under instructions of Horn, he executed an 'Agreement Contract and Lease' wherein he agreed to haul certain materials for Archer to Sioux Falls, South Dakota. Pursuant to this 'trip lease' decedent delivered the shipment to its destination on the afternoon of March 17, 1971. He arrived too late to unload the trailer, so he unhitched it and left it at the delivery site. Decedent telephoned Archer, but the call was taken by Horn's operations supervisor who was in Archer's office. Decedent was instructed to report to the delivery site at 8:00 A.M. the next morning to assist in the unloading and to telephone Horn after the trailer was unloaded.

It was stipulated that on the evening of March 17, 1971, at sometime prior to 11:43 P.M., decedent was injured in Sioux Falls when his tractor collided with a light pole. On March 21, 1971, Jones died as a result of head injuries sustained in the collision.

On April 23, 1971, decedent's wife, Helen S. Jones, and her minor daughter, filed a dependent's notice and claim for compensation before the Industrial Commission. Their claim was heard by a referee, who, thereafter, entered an order awarding maximum compensation to the claimants. By order dated July 28, 1971, the referee found that decedent was a special employee of Archer at the time of his death; that he was required to be away from home because of his duties; that he was performing duties incident to living away from home; and that he was performing acts incident to his employment. Upon these findings the referee concluded that Jones' death resulted from injuries sustained in an accident arising out of and in the course of his employment and ordered Archer's insurer, Truck Insurance Exchange, Inc., to pay compensation. The referee dismissed the claim against Horn and its insurer, Commercial Standard Insurance Company. Upon a petition for review filed by Archer and its insurer, the referee entered a supplemental order dated March 24, 1972, in which he incorporated by reference the findings in his previous order and made additional findings. He found that by the terms of the 'Agreement Contract and Lease' Horn had agreed to pay the decedent's compensation coverage. The referee ordered Horn's insurer to pay compensation to the claimants. On review, the Industrial Commission approved, affirmed, and adopted both the referee's initial findings and supplemental order. Archer and Horn and their insurers have filed this petition for review seeking reversal of the final order of the Commission.

Archer contends that the Commission's finding, that decedent was a special employee of Archer at the time of his death, is erroneous because the evidence does not establish that there was a new contract of hire existing between decedent and Archer, or that control over the decedent passed from Horn to Archer. C.R.S.1963, 81--13--1, provides that the 'loaning employer' shall be liable for workmen's compensation:

'. . . unless it shall appear from the evidence in said case that said loaning constitutes a new contract of hire, express or implied, between the employee whose services are loaned and the person to whom he was loaned.'

There is a conflict in the evidence upon the question whether decedent was a special employee...