C & H Transp. Co. v. McLaughlin
| Decision Date | 12 September 1967 |
| Docket Number | No. 42249,42249 |
| Citation | 434 P.2d 229 |
| Parties | C & H TRANSPORTATION COMPANY and Commercial Standard Insurance Company, Petitioners, v. Helen T. McLAUGHLIN and State Industrial Court, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where the relationship of employer and employee forms a disputed issue on review of a decision made by the State Industrial Court, the Supreme Court will reweigh the evidence contained in the record and undertake an independent evaluation of both law and facts to establish the existence or absence of such relation.
2. The decisive test in determining whether one is an employee or an independent contractor is the right to control the physical details of the work, and such right may be established either by a formal contract or by conduct of the parties thereunder.
Original proceeding to review an award of the state industrial court allowing death benefits under the workmen's compensation act. Award sustained.
Covington, Gibbon & Poe, by A. M. Covington and James E. Poe, Tulsa, for petitioners.
Dennis J. Downing and William A. Harrington, Tulsa, Charles R. Nesbitt, Atty. Gen., for respondents.
This is an original proceeding to review an award of the State Industrial Court in favor of the claimant for the death of her husband, William E. McLaughlin, under the death benefit provisions of the Workmen's Compensation Act (85 O.S. 1961 § 22(7). Parties will be referred to as they appeared before the Industrial Court. The deceased workman will be referred to as 'deceased'. Lee C. Moore Corporation will be referred to as 'Moore' or 'Shipper'.
Claimant, as administratrix of the estate of the deceased workman, brought the proceeding in the trial court to recover the death benefits arising out of his death on behalf of the next of kin of the deceased. Deceased left surviving him as next of kin, his wife, Helen T. McLaughlin, and two adult sons. It is conceded that the two adult sons were not dependent on deceased and the benefits if recovered inure to the exclusive benefit of the surviving widow. It is also conceded that the deceased at the time he sustained the fatal injuries was working at a hazardous occupation covered by the Oklahoma Workmen's Compensation Act.
The deceased was killed on January 7, 1966, in a collision between his own pickup truck, driven by him, eight miles south of Hugo, Oklahoma, and another object. At the time of the collision the deceased was transporting freight for the respondent.
Respondent's sole contention on appeal is that at the time of the accident the deceased was operating his own pickup truck as an independent contractor and not as an employee of the respondent within the purview of the Oklahoma Workmen's Compensation Act.
The evidence is undisputed. Respondent is a motor carrier for hire engaged in the oil field trucking business and operates large trucks for the hauling of oil-field equipment. In the conduct of its business respondent found that quite frequently a customer would need to transport quickly a small item of freight weighing less than 1500 pounds. In order to supply this need to its customers respondent established a 'hotshot' service. It made arrangements with owners of small trucks to transport these small shipments for its customers.
On January 7, 1966, the deceased McLaughlin was driving his own truck as a hotshot operator for respondent. He was the only hotshop operator working for the respondent at the time and had been working in such capacity for the respondent for several years. As a hotshot operator he was on twenty-four hour call by the respondent. If away from his home he either would advise the respondent or his wife where he could be located. Upon receiving a request from one of its customers to haul a small or hotshot shipment the respondent would call the deceased. The deceased then would drive his truck to the customer's place of business and accept the shipment as the agent of respondent. The shipment would be transported under respondent's bill of lading. The respondent paid the deceased twenty-eight cents per mile one way (or on a mileage basis of fourteen cents per mile traveled each way) on each shipment. The respondent then would bill the customer for the shipping charges at $.40 per mile one way. Mr. McLaughlin was paid by check of the respondent at the completion of each trip. The mileage was figured on the basis of the route suggested in the Oil Field Haulers Associated Guide, that ordinarily being the shortest and quickest route from the point of departure to point of destination.
Customers of the respondent knew that the deceased was serving as a hotshot operator for the respondent. On some occasions, particularly at night when respondent's business office was closed, the customer called the deceased direct. Deceased was authorized by the respondent to accept such shipments for the respondent and do the hauling. In such cases the shipment was made under respondent's bill of lading.
The evidence established that for 3 1/2 years time prior to his fatal accident during which the deceased had done hauling for respondent he had restricted his trucking activities solely to hauling for the respondent although the testimony was that he was not required to so limit his activities.
The agreement between the deceased and the respondent was oral and could be terminated by either party at any time.
As previously stated, the deceased owned the pickup truck he was driving at the time the accident occurred. He purchased the gasoline and oil for operating it and paid all expenses connected with the operation of the truck. The respondent exercised no supervision over the operation of the truck from the standpoint of safety, its condition or the method it was being operated.
There is hardly any confusion as to whether or not the respondent withheld social security or income taxes from payments it made to the deceased. Claimant submitted in evidence the deceased's W--2 for the year 1964. The form shows that the respondent paid deceased's F.I.C.A. taxable wages in the amount of $70.40 during the year 1964 on which it withheld income taxes of $6.22 and F.I.C.A. taxes of $2.55. The evidence establishes that during the year 1964 the deceased may have done some work for the respondent for which he was paid on an hourly basis although on the greater portion of his work he was paid on a mileage basis. Respondent's terminal manager testified that deceased paid his own social security and income taxes. The record reflects that the terminal manager may not have been in a position to testify accurately on such subject. He said that he was present on several occasions when the deceased was paid after making a trip and the deceased was paid the entire amount for the trip calculated on a mileage basis without the withholding of any amount for taxes.
The deceased had no permits or certificates in his name from the proper governmental agencies authorizing him to haul freight as a motor freight carrier for hire.
The shipment being hauled by the deceased on the date of the accident was shipped by Lee C. Moore Corporation. A representative of Lee C. Moore Corporation called the respondent's dispatcher. He told the dispatcher that he had a hotshot shipment for transportation and asked the dispatcher to notify the deceased. The deceased had previously notified the dispatcher that if needed he could be located at Pryor, Oklahoma, where he was visiting his mother. The dispatcher called the deceased and he in turn picked up the shipment for Moore in Tulsa to be delivered to the Delta Marine Drilling Co. at Jennings, Louisiana. The merchandise was shipped on the bill of lading of respondent. The deceased accepted the shipment as the representative of the respondent and signed the bill of lading as its representative. While transporting the shipment at a point on the highway near Hugo, Oklahoma, deceased's truck was involved in a collision. He sustained serious injuries which resulted in his death.
Among other items of testimony considered salient by this Court was that of the terminal manager who...
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Worcester's Death, Matter of
... ... Culp, Okl., 353 P.2d 9 (1959); Mistletoe Express Service v. Britt, Okl., 405 P.2d 4 (1965); C & H Transportation Company v. McLaughlin, Okl., 434 P.2d 229 (1967). It is unnecessary to restate these factors, or elaborate discussion by measuring evidentiary facts against particular ... ...
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Michaud v. Charles R. Steeves & Sons, Inc.
... ... C & H Transportation Company v. McLaughlin, 1967, Okl., 434 P.2d 229 ... Petitioner's characterization of himself as a self-employed person is not conclusive against him. The ... ...
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Wolfe v. Shiprock Corp., 43475
... ... Herron Lumber Company v. Horn, supra; C. & H. Transportation Co. v. McLaughlin, Okl., 434 P.2d 229; Major Leasing Service Co. v. Cross, Okl., 394 P.2d 487. Nor did the fact that respondent did not include the claimant as an ... ...
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Leonhardt Enterprises v. Houseman
... ... Herron Lumber Co. v. Horn, 446 P.2d 53 (Okl.1968); C & H Transportation Co. v. McLaughlin, 434 P.2d 229 (Okl.1967) ... Petitioners recognize these principles, and premise their argument upon decision in Page v. Hardy, 334 ... ...