Bendure v. Great Lakes Pipe Line Co., 44829

• Decision Date: 13 November 1967
• Docket Number: No. 44829,44829
• Citation: 433 P.2d 558,199 Kan. 696
• Parties: Fred D. BENDURE, Appellant, v. GREAT LAKES PIPE LINE COMPANY, Inc., Appellee.
• Court: Kansas Supreme Court

Page 558

433 P.2d 558

199 Kan. 696

Fred D. BENDURE, Appellant, v. GREAT LAKES PIPE LINE COMPANY, Inc., Appellee.

No. 44829.

Supreme Court of Kansas.

Nov. 13, 1967.

.rehearing Denied Dec. 13, 1967.

Syllabus by the Court

1. The terms statutory employers and employees and special employers and employees, as used in determining the right to workmen's compensation, defined and distinguished.

2. A sale and delivery of merchandise is not such a contractual relationship as is anticipated by K.S.A. 44-503 creating statutory employers and employees for the purpose of workmen's compensation.

3. The rule stated in paragraph 2 of the syllabus is subject to the exception that when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a contractor within the meaning of the statute, and the rule is also subject to the exception that the sale must not be a mere device or subterfuge to avoid liability under the Workmen's Compensation Act.

4. It is impossible to lay down a rule by which the status of a person performing a service for another can be definitely fixed as an employee, as ordinarily no single feature of the relation is determinative, but all must be considered together and each case must depend on its own peculiar facts, and in order to the determine the actual relationship of the parties under any employment the courts will look to all the circumstances involved in the particular case.

5. When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if (a) The employee has made a contract of hire, express or implied, with the special employer; (b) The work being done is essentially that of the special employer; and (c) The special employer has the right to control the details of the work.

6. This court has consistently followed the rule that in reviewing the propriety of an order sustaining a motion for a directed verdict this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury.

John E. Shamberg, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, Edward G. Collister, Jr., Gerald T. Elliott, Kansas City, and Joseph P. Jenkins, Chicago, Ill., were with him on the briefs for appellant.

J. D. Lysaught, of Kansas City, argued the cause, and Lee E. Weeks, Leonard O. Thomas, Richard Millsap, Robert H. Bingham, Ervin G. Johnston, Miles D. Mustain and Roger D. Stanton, Kansas City, were with him on the briefs for appellee.

HATCHER, Commissioner.

This was a personal injury action brought by an employee under K.S.A. 44-504, and which was defended under a claim that the Workmen's Compensation Act provided the exclusive remedy.

Certain introductory facts which are not in dispute will first be stated.

The defendant, The Great Lakes Pipe Line Company, was engaged in installing de-aerators and pumps in connection with its enisting facilities at its Kansas City terminal. The work was being done by the defendant's own employees and was well within its authorized trade or business.

The plaintiff, Fred D. Bendure, was employed by the Builders Steel Company and came on the premises of the defendant to deliver two steel I-beams. The beams were 36 feet in length and weighed 612 pounds each. The beams were loaded on a flat bed truck with places on each side and at the rear end to insert stakes to keep the load from rolling off. The front end of the truck had a cowling running along the front end which flanged around the frong sides about six or eight enches. The I-beams were touching the cowling in front and were lying parallel with the truck near the center of the bed.

As this entire controversy revolves around the unloading of the truck and the evidence from which the facts must be derived is conflicting, and in some instances inconclusive and subject to inferences, the testimony on this part of the controversy will be presented in detail.

The plaintiff testified that when he made the delivery to the defendant as far as he knew he was not to unload it. A very few times he had given help as a matter of courtesy. He did not know whether the price of the steel included unloading. When he arrived at the defendant's terminal he stopped at the main office for directions as to where they wanted him to unload it. He was directed to an open space south of the plant. He was met by Mr. Ploth, terminal superintendent, who informed him they would not use an A frame but would roll the I-beams off. Plaintiff told Ploth that if they were going to roll the beams off they would have to pry the beams back from the front of the truck so they would not catch the cowling and tear it off. There was some conversation with Mr. Ploth about taking the stakes out.

'* * * When he started pulling out the stakes, he started throwing them over the beams. It was so much handier to put them back under the beams, so I made mention of that fact so he laid them back on the bed, and shoved them under the beams. I told him we would leave the two back ones. The two in the back were left on. They were left as a safety precaution. If these two stakes were left in that position, I knew that the beams couldn't be taken off.'

Plaintiff got a crow bar, got on the truck and started prying the beams back from the front to clear the cowling. Mr. Ploth directed a Mr. Copp to get a bar and help him. The plaintiff was at the front of the truck astride the I-beams prying when one of the beams fell off the rear side. He stated:

'My right leg was caught between the cowling and the beam. One beam moved only. I looked back because I couldn't imagine any way possible for the beam to be on the ground. I saw no stakes and the beam on the ground. I saw two or three men. They were at the back of the truck. The stakes weren't there. When I went astraddle of those beams, I did not expect anyone to remove those stakes from the rear. * * *

'At no time did Mr. Ploth give me any orders out there except parking the truck. I was not under orders from my company to take orders from the Great Lakes Plant Superintendent. I had never seen him before. * * *

'I have testified that near the middle of this truck this beam was 2 1/2 feet from the edge. The west end of the beam was up against the cowling. The end fo the beam on the cross bar to the east was three feet or more from the north edge of the truck. In order for the beam to have moved clear off and to come off, it had to travel at least three feet on the far cross member. I had no notice that there was anything wrong. The first notice I had was when it had me pinned to the cowl. The beam had me nailed to the cowl.

'I did not ask for Mr. Copp to assist me. I heard nobody ask for Mr. Copp. I didn't know who Mr. Copp was. I have never had a beam ever come off of my truck as in this case.

'Q. After you had pulled and pried the beam back from the cowling, what was your intention; what did you intend to do, after you got it pried back from the cowling?

'A. Just stay right there until it was unloaded.

'It was the idea of the Great Lakes' superintendent to roll it off the truck.'

Mr. Arthur James Danforth, shipping clerk for Builders Steel Company, testified:

'Q. Now, do you, as a shipping clerk, have any control over the practices that are used in shipping, Mr. Danforth-in delivery-I'm sorry-the loading and unloading techniques that are used?

'A. Well, only insofar as we request the cooperation of our drivers, not putting themselves necessarily in someone else's employ or anything, but who cooperate basically to the extent of trying to get our trucks back serviceable and on the road again for us.'

Mr. Merlin Hargrove, plant superintendent for Builders Steel Company, testified that the responsibility for unloading I-beams or steel products had never been discussed with the defendant. They ask their drivers to cooperate with their customers in such a manner the material would be unloaded to their satisfaction. The driver is subject to the customer's request for certain procedures such as to which door, at what point on the dock or at what part of the building the material would be unloaded. If an I-beam were up against hood or cowling of one of these big trucks, it should be pried back and rolled to the edge, if room, before stakes are removed. He stated:

'It is our practice and suggestion in this kind of case involving these heavy beams that hoisting devices be used if they are available. Definitely. That is a safer way of doing it. It's not only safer to the individuals who are working in the area, but safer to our driver and the equipment. It is not unusual for the driver to ask and suggest to our customers that they use such a device if it is available.'

The following is an interrogatory to appellee and answer:

'Did any employee of defendant start to unload two I-beams delivered by plaintiff to defendant's premises at 401 East Donovan Road, Kansas City, Kansas, on September 24, 1963, before plaintiff's injury?

'ANSWER: I.R.Ploth removed two stakes from the side of the truck involved before being told to stop by Fred D. Bendure, the plaintiff.'

Mr. William T. Bruce, president of Builders Steel Company, testified:

'Q. Does your price structure include unloading?

'A. Yes and no; our price structure includes delivery to the job.

'Q. All right; does your customary procedure require that a man like Fred Bendure place him under the control and direction of a man like Mr. Ploth, who happens to be the terminal superintendent--

'A. Fred Bendure is one of our employees and is under our jurisdiction, as far as I am concerned.

'* * * It is one of Fred Bendure's duties as my employee to protect our...