Feldmann v. Dot Delivery Service, 32852

• Decision Date: 20 February 1968
• Docket Number: No. 32852,32852
• Parties: Irvin FELDMANN, Employee, Respondent, v. DOT DELIVERY SERVICE, Employer, and Bituminous Casualty Corporation, Insurer, Respondents, Brueckman Cooperage Company, Employer, and National Automobile & Casualty Insurance Company, Insurer, Appellants.
• Court: Missouri Court of Appeals

Page 491

425 S.W.2d 491

Irvin FELDMANN, Employee, Respondent, v. DOT DELIVERY SERVICE, Employer, and Bituminous Casualty Corporation, Insurer, Respondents Brueckman Cooperage Company, Employer, and National Automobile & Casualty Insurance Company, Insurer Appellants.

No. 32852.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1968.

R. C. Reis, St. Louis, for appellants.

Gunn & Gunn, St. Louis, for respondent, Irvin Feldmann.

Albert I. Graff, Frank J. Lahey, Jr., Malcolm I. Frank, St. Louis, for respondents, Dot Delivery Service, employer, and Bituminous Casualty Corporation, insurer.

TOWNSEND, Commissioner.

This Workmen's Compensation case presents another illustration of the loaned employee problem. The Referee entered an awared against the general employer and the special employer (and their respective insurers) as joint employers for healing period and for permanent partial disability of the claimant; he found that $2185 had been paid to the claimant for temporary total disability by the insurer of the general employer. Upon review the Industrial Commission found as a fact that the claimant was in the exclusive employ of the special employer at the time of his injury. The final award recites that claimant was not in the employ of the general employer at the time of injury; therefore compensation against the general employer and its insurer was denied. The recited compensation payable under the final award was for $3670 less the sum of $2185 previously paid by the insurer of the general employer. The special employer and its insurer appealed to the Circuit Court which sustained the final award of the Commission. The special employer and its insurer appear here as appellants and the general employer as respondent.

The employer parties to this proceeding are Andrew G. Hart operating under the name of Dot Delivery Service and engaged in local drayage and trucking and Brueckman Cooperage Company, a corporation, carrying on the business of buying, selling and reconditioning used steel drums and wooden barrels. For the sake of brevity the parties will be hereafter referred to respectively as Dot and Brueckman.

In 1956, Dot and Brueckman orally entered into the present controversial arrangement involving the haulage of barrels for Brueckman. Dot bought from Brueckman a truck owned by the latter, removed the barrel body therefrom and installed it on a new truck chassis purchased by Dot. At the time of claimant's accident the name 'Brueckman' still appeared on the body; elsewhere the Dot name appeared on the side of the truck. The agreement called for Dot to furnish a truck and driver to Brueckman at a fixed hourly rate. Fuel and oil and repairs were furnished by Dot. Brueckman paid for eight hours at the hourly rate in respect of any day during which the truck was in its service for any length of time, but if the truck were used at no time on a particular day there was no charge for that day. There were times when the driver at the close of a day would telephone Dot that Brueckman would not use the truck the following day; in such event the driver (present claimant) would work on his farm the following day but occasionally he would come in to Dot and make city deliveries for Dot. In the latter case he did not use the truck which otherwise he would drive on the Brueckman business. That truck was normally housed overnight at the Brueckman premises, and the driver began his day there at 8 a.m. The driver received his Dot pay check every Friday night at the Dot garage; income withholding taxes and social security taxes were withheld by Dot. Vacation pay was paid to the driver by Dot. The truck which was allocated to Brueckman business by Dot was never used for any other purpose. The arrangement with Brueckman was the only one of its nature into which Dot entered. Mr. Hart testified that because of one driver's personal differences with Brueckman's superintendent Hodge he removed that driver from the Brueckman job at the insistence of Hodge and that he (Hart) then filled in on the driver's job himself as a substitute. After claimant was hired by Dot, Hart rode the job with claimant for a few days in order 'to see if he could drive'. When Mr. Hart was acting as a substitute, he was instructed to make stated deliveries and pick-ups and to stop by certain companies on the way in or out to see if they had any drums to pick up. While not instructed the route to follow, 'he (Hodge) would tell you what accounts to go to first'. In picking up barrels he was given definite instructions as to the kind of barrels to be picked up and as to a kind not to be picked up because of nails in the body of the barrels. He stated further that claimant was hired for the specific job of driving for Brueckman and that Brueckman 'wanted one driver at all times because it was beneficial to them going ground and learning these pick-ups and stops and what type of drums to get'--that Brueckman insisted that it have a familiar driver 'That's around the job every day'. When a delivery or pick-up necessitated the payment of a bridge toll, the amount of same was furnished to the driver in cash by Brueckman at the beginning of a trip. Mr. Hart testified that otherwise than as above stated he had no 'control or jurisdiction of the use of that truck when it was given to Brueckman Cooperage' and no control or supervision of the driver as to what he did or 'anything about his working'.

Testimony of the claimant: He did the hauling at Brueckman for five years or more. The work was fairly steady; sometimes he worked five days a week and at other times only three or four days. When he went to work for Brueckman on any particular day he never received any instructions from anybody at Dot as to what he had to do. He received his orders from the superintendent of Brueckman either to make deliveries or to make pick-ups, 'whichever comes first'. When he entered upon his employment Mr. Hart instructed him to follow Brueckman orders in making deliveries or pick-ups,--'Whatever they told me to do. That they were to give me my orders when I went down there to pick up'. As to his actual operations claimant testified:

'Q. Now, they gave you an invoice for each stop you were going to make and then you figure out this routing or this figuring yourself?

A. All truck drivers do that.

Q. Did Hodge (superintendent) ever tell you that follow any particular route through the city or take any particular streets?

A. No.

Q. Did he do anything more than just say here are some invoices, you go out and deliver them?

A. It's more the way it went.

Q. Now, on pick-ups, were there any particular instructions about how you were to handle that?

A. Well, it was stacked the same way * * *.

Q. And that would be the extent of the instructions that you got from the Brueckman Cooperage?

A. Unless something special come up and they wanted you to do something particular.

* * *

* * *

Q. Did Brueckman ever tell you, give you any instructions whatsoever with regard to how you were to drive that truck or handle the truck?

A. Why, no. They never told me what street.

* * *

* * *

Q. While you worked for Brueckman Cooperage at any time did anybody other than the Brueckman Cooperage people give you instructions on what to do?

A. Well, any time the truck driver is leased out to somebody, they take orders from that person. That's what you would do. If I come up to work for you, I take orders from you. If I come over, if I come over to work for him, I'd naturally have to take orders from him.

Q. And during that time you take no orders from Dot Delivery Service or anybody connected with Dot?

A. Wouldn't have any occasion to.

* * *

* * *

Q. They (Brueckman) had complete control and jurisdiction over what you had to do while you were putting in time for that company?

A. For that day, yes.

* * *

* * *

Q. Did you ever have any agreement with the Brueckman Cooperage, any--lets put it this way. Did you have any discussion with the Brueckman Cooperage about working for them directly?

A. No.

Q. There were no agreements of any kind between you and Brueckman that you were going to work for them?

A. No. You mean like on my days off or anything?

Q. No. While you were driving that truck.

A. No.'

When claimant arrived at the Brueckman plant with a load of barrels at quitting time, the load was just left on the truck there and claimant would unload it the next morning.

Claimant's injury occurred on the truck while he was engaged in picking up barrels at the premises of a Brueckman customer for conveyance to the Brueckman plant.

When claimant was off sick upon one occasion, he notified Dot and Dot sent another driver to replace him. When claimant was injured in the course of operating the truck for Brueckman, he reported his accident to Dot; he never personally notified Brueckman although Brueckman knew of the accident. Brueckman never paid claimant any salary or bonus--not even a Christmas gift.

Miss Dillon, until recently President of Brueckman, described the Brueckman business as buying drums and barrels, reconditioning and selling them; in some situations Brueckman simply reconditioned drums for others at a service charge. When Brueckman received calls to make pick-ups they endeavored to route the truck in one area and the same technique was followed in connection with making deliveries. After the Brueckman truck was sold to Dot Brueckman had no delivery trucks; nor did it have its own driver who drove a truck furnished by Dot. The driver assigned to the truck by Dot was kept on the job regularly unless he became ill or there was some emergency in his family. Miss Dillon testified that instructions were given to the driver by Hodge, Brueckman's superintendent, and, in Hodge's absence, by herself. Upon most occasions customers would inform Brueckman when they had drums on hand and 'how much they are'. Some regular customers were called on once a week, others twice a month. On some occasions,...