Jackson Trucking Co. v. Interstate Motor Freight System

Decision Date21 March 1952
Docket NumberNo. 18228,18228
Citation104 N.E.2d 575,122 Ind.App. 546
PartiesJACKSON TRUCKING CO., Inc. v. INTERSTATE MOTOR FREIGHT SYSTEM et al.
CourtIndiana Appellate Court

Murray, Mannon, Fairchild & Stewart, James L. Murray and Samuel A. Fuller, all of Indianapolis, for appellant.

Burke G. Slaymaker, Theodore L. Locke, Hugh E. Reynolds, Emerson Boyd, William B. Weisell, all of Indianapolis, for Interstate Motor Freight System.

Robert K. Ryan, Frankfort, for Maxine Troxel, Myra Kay Gable, Mary Lenore Gable.

ACHOR, Judge.

This is an action for workmen's compensation by the dependent heirs-at-law of Shirley Troxel, against the appellant, Jackson Trucking Company, Inc., and the appellee, Interstate Motor Freight System, on account of the death of the said Shirley Troxel.

The finding of the full Industrial Board was for the appellee Interstate Motor Freight System and against the appellant Jackson Trucking Company, Inc., and award was made accordingly.

There being no dispute as to the facts of the case, this court is required to determine whether, under the facts in evidence, the Industrial Board was in error as to its conclusions of law and its award based thereon.

The essential facts in the case are as follows: The decedent, Shirley Troxel, was buying a tractor from the appellant on a conditional sales contract. He leased said tractor back to appellant Jackson Trucking Company, Inc., and operated the same to draw trailers loaded with cargo assigned to him by said appellant. Troxel paid his own traveling expenses and fuel and maintenance costs for the tractor. He was paid by the appellant on this basis of the freight carried and mileage traveled. Appellant generally provided the cargo and assigned the routes and destination for Troxel's trips. The appellant carried workmen's compensation on the basis of Troxel's earnings. Their relationship was such that it could be terminated any time by either party.

The facts immediately preceding the fatal accident were as follows: The decedent, at the direction of the appellant, hauled a load of freight from Indianapolis to Detroit, Michigan. He had no return load and had been instructed by the appellant that under such circumstances to endeavor to secure such a load from another carrier. He contacted the appellee Interstate Motor Freight System at Toledo for that purpose. He was told that they had loads going to Evansville, Indiana, and thereupon Troxel and another Jackson driver reported to Interstate for inspection and loading. The testimony by an official of Interstate, regarding such inspection, is as follows: 'We brought them in and inspected their equipment, as we do, asked for their physical examination so that we were sure that they were capable and could work under not only the Interstate Commerce Commission rules, but our own safety department rules. * * * We determined that their physical condition was in order and that they were working for a bona fide company, or that they legitimately owned their own equipment, and these two drivers passed the inspection.'- The Jackson Trucking Company, Inc., had no authority from the Interstate Commerce Commission to operate between Toledo, Ohio and Evansville, Indiana. Therefore, a trip lease agreement was executed, whereby the Jackson Trucking Company operated under the permit of the Interstate Motor Freight System. In substance, the testimony regarding this trip lease agreement is as follows: 'By the trip lease agreement, the Interstate leased the outfit for the purpose of this trip, and it was operated under that lease, and the form of the lease is prescribed by the Interstate Commerce Commission. The Interstate Motor Freight System leased this outfit and driver for the purpose of this one trip, and we had permission, or authority, from the Interstate Commerce Commission to carry cargo from Toledo to Evansville, and we placed on this unit the Interstate Motor Freight System placard, so at the time it was being operated under the placard and authority of the Interstate Motor Freight System and the authority of the Interstate Commerce Commission.'

The essential provisions of the trip lease agreement, pertinent to this cause, are as follows:

'Starting Terminal, Toledo, O.

Out Jan. 5

Rest Indianapolis Destination Evansville

Authorized truck hire settlement Operator, Jackson Trucking Co.

$5.75 per ton incld. dely.

Equipment Owners Name Jackson Trucking Co.

Phone Fr. 2543

Driver's Physical Examination at Colfax, Ind.

Examined by Dr. Stout

Driver, Shirley Troxel 1 1/2-113

Owner Jackson Trucking Co. 392 Miles @ 5.75 per ton

Instructions To Driver

In transporting this load you are to travel without layover, except for rest stops required by I.C.C.

In case of breakdown, tire failure, accident or other cause that delays scheduled arrival at destination, you must immediately wire or telephone the destination terminal manager and advise him fully of your trouble and exact location or call the general dispatching office at Grand Rapids, Mich. Gl. 65351.

You will be responsible for payment of telephone or automobile tracing expense if you fail to comply with above.

Accepted Signed: Shirley Troxel.'

Troxel was killed as a result of a collision while in transit between Indianapolis and Evansville. After the fatal accident, Interstate sent one of its trucks to reload the cargo and complete the delivery.

Questions which the court is required to decide are:

(1) Was decedent an independent contractor;

(2) Was he an employee of appellant Jackson Trucking Company;

(3) Was he an employee of appellee Interstate Motor Freight System;

(4) Was he an employee of both appellant Jackson and appellee Interstate?

(1) The fact that decedent was an employee and not an independent contractor, under the facts stated, is so well established by our courts as to make further discussion of the issue unnecessary. Ben Wolf Truck Lines v. Bailey, 1936, 102 Ind. App. 208, 1 N.E.2d 660; Bates Motor Transport v. Mayer, 1938, 213 Ind. 664, 14 N.E.2d 91. Furthermore, there being substantial evidence, aided by fair inferences to support the finding of the Industrial Board, it is conclusively binding upon the Appellate Court. Indianapolis Heat & Light Co. v. Fitzwater, 1919, 70 Ind.App. 422, 121 N.E. 126; Lazarus v. Scherer, 1930, 92 Ind.App. 90, 174 N.E. 293; Prest-O-Lite Co. v. Stone, 1935, 100 Ind.App. 480, 196 N.E. 352.

The question as to whether decedent was an employee (2) of appellant Jackson Trucking Company, Inc. or (3) appellee Interstate Motor Freight System, (4) or both, is much more controversial. A general statement regarding the law on this question is as follows:

'There are a great many instances in which a general employer may loan the services of one of his employees to a special employer. If that employee is killed or injured, there is always a question concerning the liability of the general employer, the special employer, or both. Whether a new relationship has replaced the old depends upon several factors, but principally upon whether or not an agreement of employment can be found between the workman and the new, or special employer.

'Since our statute requires that there be a contract of hire before any employer and employee relationship can exist, and employee of a general employer cannot be converted into an employee of a special one without some evidence as to the existence of an agreement between them. However, such an agreement can be implied, * * *. However, the right on the part of the general employer to direct and control the workman while in the service of the special employer, coupled with the right to recall him at any time, or to discharge him would negative any evidence of an agreement creating the workman an employee of the special employer.

'While the manner of payment may not be decisive, it is important. * * * The fact that the general employer may have agreed to carry compensation insurance on the employee while in the service of the special employer will also be given its due weight as evidence of the continuing relationship.' Small's Workmen's Compensation Law, § 4.13, pp. 84 and 85.

A recent statement by this court as to the factors upon which the relationship of employment is determined, as between two employers, is as follows:

'Under the Indiana common law in the case of a general employer-special employer relationship, it has been held that the liability imposed by the doctrine of respondeat superior is made to rest upon the one who has the power to control and direct the servant in the performance of the particular work. Standard Oil Co. v. Soderling, 1942, 112 Ind.App. 437, 42 N.E.2d 373; Indiana Union Traction Co. v. Benadum, 1908, 42 Ind.App. 121, 83 N.E. 261; Kohl v. H. P. Lenhart Furniture Co., 1914, 58 Ind.App. 7, 106 N.E. 399; Lieber v. Messick, 1930, 92 Ind.App. 264, 173 N.E. 238.

'As stated in Allen v. Kraft Food Co. [1948, 118 Ind.App. 467, 76 N.E.2d 845], supra:

"The mode of payment and the right to terminate the relationship by discharge are each a circumstance to be considered along with other relevant facts and circumstances in determining the relationship, but neither is alone decisive. * * * The power or right to command the act and to direct or control the means, manner or method of performance has been recognized in this state as the 'real' test. * * * This court has recognized it as the 'decisive' test." (Our italics.) Uland v. Little, 1948, 119 Ind.App. 315, 321, 322, 323, 82 N.E.2d 536, 538.

As to the matter of the payment of wages and compensation insurance, according to the evidence there was no correlation between the contract price for this trip and the amount which the deceased would be paid by the appellant. In fact, the deceased would be paid the same amount by appellant Jackson whether or not he carried this shipment or was traveling empty. Also, it was a fact that appellant Jackson carried compensation insurance on the employee and that his salary was...

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