Dickhaut v. Bilyeu Refrigerated Transport Corp.
| Decision Date | 14 April 1969 |
| Docket Number | No. 53900,No. 2,53900,2 |
| Citation | 441 S.W.2d 54 |
| Parties | Donald L. DICKHAUT, Deceased, Lois J. Dickhaut, et al., Dependents, Plaintiffs-Appellants, v. BILYEU REFRIGERATED TRANSPORT CORPORATION, Employer, Great American Insurance Company, Insurer, Defendants-Appellants, and Harold E. Richardson, Inc., Employer, Michigan Mutual Liability Insurance Company, Insurer, Respondents |
| Court | Missouri Supreme Court |
Wayne C. Smith, Jr., and William C. Bland, Springfield, for plaintiffs-appellants.
John R. Gibson, John E. Morrison, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for defendants-appellants.
Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendants-respondents.
BARRETT, Commissioner.
On October 11, 1965, Donald L. Dickhaut was killed when the tractor-trailer unit he was operating overturned in Wolf Creek Pass, Mineral County, Colorado. He was originally employed by Richardson Trucks, Omaha, Nebraska, but Richardson closed its Omaha operation in April 1965 and moved its business of leasing trucks to Springfield. Dickhaut and four other Nebraska drivers, fully aware of the situation and the nature of their future employment, elected to move to Springfield. At the time of his death Dickhaut was on a trip for Bilyeu Refrigerated Transport Corporation of Springfield, Missouri. Bilyeu had leased the equipment from Richardson as it often did, Richardson at one time had leased as many as 40 trucks to Bilyeu. In October Dickhaut was dispatched to Wichita, Kansas, on behalf of Bilyeu and delivered his cargo in Atlanta, Georgia. There he called Bilyeu's dispatcher in Springfield and was directed to pick up a cargo of dressed poultry at Gainesville, Georgia, to be delivered at six specified places in Colorado. He had made the first 'drop' in Colorado and was enroute to Durango when his unit overturned and he was killed.
Dickhaut's widow, Lois, and their four children, ages seven to four, made claim for the death benefits under the Missouri Workmen's Compensation Act. They designated as employers both Bilyeu Refrigerated Transport Corporation and Richardson Incorporated. The referee and the Industrial Commission on review found and made an award against Bilyeu only for death benefits totaling $17,150.00. The award was affirmed on appeal to the Circuit Court of Greene County and Bilyeu through its insurer, Great American Insurance Company, has appealed to this court. In this situation no compensation has been paid the widow and dependent children in almost four years and as has been noted 'The conflict of interest becomes one not between employer and employee (who is assured of recovering from someone) but between two employers and their insurance carriers.' 1 Larson, Workmen's Compensation, p. 810. Bilyeu's insurance carrier contends in any event that Richardson and its insurer, Michigan Mutual Liability Company, 'should be liable for half of the award' on the theory of 'joint employer' and it is only by reason of their additional claim that Richardson should be liable 'for all compensation' that a sum of money within this court's jurisdiction is involved. Gennari v. Norwood Hills Corporation, Mo., 322 S.W.2d 718.
The appellants' attack is twofold, one that even after its lease Richardson exercised 'continuing control and the right to control the work of Dickhaut and was the employer of Dickhaut' and therefore liable for all death benefits due his widow and children and, two, 'that Bilyeu was at most a joint employer with Richardson' who should be liable for half of the award. Both of these attacks are based upon the assertion that the award and judgment 'are contrary to the overwhelming weight of the evidence on the whole record.' This brings into forceful play the fundamental rule to which more than lip service must be paid that since the 1945 Constitution (Art. V, Sec. 22, V.A.M.S.) this court may not substitute its Stroud v. Zuzich, Mo., 271 S.W.2d 549, 550--551, a case in which the general employer (here Richardson) rather than the special (here Bilyeu) was held liable for the death benefits due a truck driver's dependents under the Missouri compensation law. See also explicative of this rule: Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, and Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55 and RSMo 1959, § 287.490, V.A.M.S. One of the foreign cases upon which Bilyeu's insurer relies to sustain its claim of some liability upon the general employer is in fact based upon an application of this rule: 'the commission's finding of fact that Michicago had not relinquished its control over deceased in the operation in which he was engaged when killed is amply supported by the evidence.' Rantis v. Michicago Motor Exp., 333 Mich. 73, 78, 52 S.W.2d 603, 605.
Within this delimited scope of review the disposition of this appeal becomes a relatively simple problem of demonstration and it is not necessary to encumber this opinion with all the minutia of the record before the referee. In addition to the noted introductory facts it only need be said that Richardson had no I.C.C. permits and of course no lawful right to transport poultry or other cargo in interstate commerce. On employee's driving trucks leased to Bilyeu it carried no workmen's compensation insurance, contract drivers of leased units were 'carried on the same Workmen's Compensation policy by Bilyeu as was their regular drivers' and Bilyeu paid the premiums. The subject matter of this particular haul, the poultry, was from Bilyeu's sources or clients--not Richardson's. While Richardson maintained an agent in Bilyeu's office, a driver supervisor, he testified that once 'I dispatch him to Bilyeu, he is under Bilyeu's control, the dispatcher's control, and he...
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