Forrester v. Kuck, 13940

• Decision Date: 23 May 1978
• Docket Number: No. 13940,13940
• Citation: 177 Mont. 44,579 P.2d 756
• Parties: Lyle H. FORRESTER, Plaintiff and Appellant, v. Edwin KUCK et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 756

579 P.2d 756

177 Mont. 44

Lyle H. FORRESTER, Plaintiff and Appellant, v. Edwin KUCK et al., Defendants and Respondents.

No. 13940.

Supreme Court of Montana.

Submitted April 26, 1978.

Decided May 23, 1978.

Berger, Anderson, Sinclair & Murphy, Billings, James J. Sinclair (argued), Billings, for plaintiff and appellant.

Moulton, Bellingha, Longo & Mather, Billings, William S. Mather (argued), Billings, R. H. Bellingham (argued), Billings, for defendants and respondents.

JOEL ROTH, District Judge. ^*

Plaintiff Lyle H. Forrester appeals from a summary judgment in favor of defendants Edwin Kuck, Danny Duane Kuck and George Chavez granted July 20, 1977, by the District Court, Yellowstone County.

The legal proceedings leading up to the summary judgment were: Plaintiff Forrester filed a complaint on March 22, 1976, against the three defendants alleging injuries caused by the negligent operation of trucks driven by defendants Danny Kuck and George Chavez resulting in a collision between the truck driven by defendant Danny Kuck and plaintiff's motorcycle on the highway near Warren, Carbon County, Montana, on July 29, 1975. The complaint also alleged that defendants Danny Kuck and George Chavez were employees of defendant Edwin Kuck who owned the trucks.

Defendants filed a motion to dismiss, which was denied. Defendants' answer was filed on July 9, 1976. It alleged that defendants Danny Kuck and George Chavez were not employees of defendant Edwin Kuck but were employees of Empire Sand and Gravel Company; that plaintiff Forrester was also an employee of Empire Sand and Gravel Company; and, that Forrester's injuries arose out of an industrial accident for which he received workman's compensation benefits.

The question as to who was the employer of defendants Danny Kuck and George Chavez became the issue in the case as framed by the pleadings.

Discovery consisted of defendant Edwin Kuck's answers to written interrogatories propounded by the plaintiff; the deposition of defendant Edwin Kuck; the deposition of plaintiff Forrester; an affidavit of Meredith Reiter, the vice-president of Empire Sand and Gravel Company; and, an affidavit of Officer George E. Turner, the highway patrolman who investigated the accident.

The undisputed facts established by the discovery procedure are:

Plaintiff Forrester was an employee of Empire Sand and Gravel Company working at a gravel pit near Warren, Montana, loading gravel trucks hauling gravel to a nearby railroad siding. At the end of his work shift Forrester would drive to his residence in Bridger, Montana, a distance of 26 miles. His employer paid him travel pay, based on mileage to and from the job.

Defendant Edwin Kuck, the owner of the trucks, by an oral agreement with Empire Sand and Gravel Company, leased five trucks to Empire which included the two trucks driven by defendants Danny Kuck and George Chavez. The drivers of defendant Edwin Kuck's trucks were hired by Empire through the local union, were paid their wages pursuant to union contract by Empire, and Empire withheld federal and state income taxes and social security from their wages and paid industrial accident premiums and unemployment taxes on their wages. Empire prepared and furnished W-2 Wage and Tax Statements to each of them for the year 1975, showing Empire as their employer. They were insured under Empire's industrial accident coverage. Defendants Danny Kuck and George Chavez were under the direction and control of Empire. Defendant Edwin Kuck was required to repair and maintain the trucks and to provide liability insurance on the trucks. The trucks were leased at the rate of $32 per hour. Defendant Edwin Kuck received the balance of the hourly rental after Empire paid the drivers' wages and deducted various items from the $32 hourly rate.

On July 29, 1975, plaintiff Forrester had completed his shift at approximately 5:00 p. m. and was enroute to his residence riding his motorcycle and following the loaded truck driven by defendant George Chavez. The truck driven by Chavez and an oncoming empty truck driven by defendant Danny Kuck switched lanes at a curve in the highway pursuant to CB radio communication between the two drivers. The empty truck driven by defendant Danny Kuck collided with plaintiff's motorcycle.

Forrester was injured and hospitalized. He was awarded workmen's compensation benefits through the industrial accident coverage of Empire Sand and Gravel Company.

The above facts were undisputed by plaintiff Forrester when defendants filed their motion for summary judgment on September 22, 1976. Without presenting any facts in support, plaintiff contended in his answer brief to the motion for summary judgment that defendants Danny Kuck and George Chavez were employees of defendant Edwin Kuck or, at least, were employees of both defendant Edwin Kuck and Empire Sand and Gravel Company.

The law as applied to the undisputed facts is clear that an employee is entitled to workmen's compensation benefits when his injuries arose out of and in the course of his employment. Section 92-614, R.C.M.1947.

An employee who receives travel pay to and from his place of employment and is injured during travel to or from his place of employment is considered to have received injuries in the course of his employment. McMillen v. McKee, 165 Mont. 462, 533 P.2d 1095 (1975).

The law is also clear that if one...