Julian Martin, Inc. v. Indiana Refrigeration Lines, Inc.

• Decision Date: 23 January 1978
• Docket Number: No. 2,No. 77-239,77-239,2
• Citation: 560 S.W.2d 228,262 Ark. 671
• Parties: JULIAN MARTIN, INC., et al., Appellants, v. INDIANA REFRIGERATION LINES, INC., et al., Appellees
• Court: Arkansas Supreme Court

Page 228

560 S.W.2d 228

262 Ark. 671

JULIAN MARTIN, INC., et al., Appellants, v. INDIANA REFRIGERATION LINES, INC., et al., Appellees.

No. 77-239.

Supreme Court of Arkansas, Division No. 2.

Jan. 23, 1978.

Murphy, Blair, Post & Stroud by H. David Blair, Batesville, for appellants.

Wright, Lindsey & Jennings, Rose, Nash, Williamson, Carroll, Clay & Giroir, by Phillip Carroll, Little Rock, for appellees.

FOGLEMAN, Justice.

The Workmen's Compensation Commission awarded compensation to appellee Robert Lee Underwood on account of injuries suffered by him while driving a truck near Ft. Smith, Arkansas. The truck was owned by appellee White County Ready Mix, who leased it to appellant Julian Martin, Inc., who in turn leased it to appellee Indiana Refrigeration Lines, Inc., for a specific trip. Underwood was on this trip when he suffered a compensable injury. The only contention by appellant, on appeal, is that Indiana Refrigeration Lines was the employer of Underwood at the time and that appellant was not. We hold that the question was one of fact and that there was substantial evidence to support the commission's finding.

It was stipulated that, at the time of Underwood's injury, the truck was being operated pursuant to a trip lease to Indiana Refrigeration Lines, Inc. and under authority granted to that company by the Interstate Commerce Commission. Appellant's argument is two-fold. It contends that Indiana Refrigeration Lines was the employer because (1) it controlled the activities of Underwood under ICC regulations and (2) it collected and remitted to its insurance carrier premiums for workmen's compensation insurance coverage on appellant on this particular trip and should be estopped from denying coverage. We do not consider either factor to control the status of Underwood as an employee of appellant as a matter of law, although there might be substantial evidentiary support for such a holding. But we are not concerned with the question whether there is support for a conclusion different from that reached by the commission. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W.2d 304; Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487. Our only concern is whether a fair-minded person could reach the conclusion the commission did reach upon the evidence submitted. If so, the evidence is substantial. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689; Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W.2d 242; Herman Wilson Lumber Co. v. Hughes, supra.

Underwood was hired by Dan King, the sole proprietor of White County Ready Mix and the truck Underwood was driving. It was known to Underwood that the truck was leased to Julian Martin, Inc., because a sign painted on the door on each side of the truck so indicated. Underwood was told that he would receive his pay from Bob Killian, the "first driver" of the truck, who was paid by King on a percentage basis. The last pay received by Underwood was by check of White County Ready Mix. Killian did not accompany Underwood on the trip during which the injury occurred, and this was Underwood's first trip alone.

The drivers were expected to call appellant daily, so appellant would be advised as to what was going on. They customarily reported their location and how things were going. Whenever Killian and Underwood reached any destination, Killian would call appellant in Batesville for dispatch to another place to pick up cargo. Killian called appellant about destinations daily.

On the particular occasion in question, Underwood left Batesville with a load of chickens to be taken to Sioux City, Iowa, and was told by appellant to then go back to Glenwood, Iowa, to pick up a load of pork to be transported to Memphis. After unloading the chickens, Underwood went to Indiana Refrigeration Company in Sioux City, filled out a sublease or trip lease of the truck by appellant to Indiana Refrigeration Lines, and was furnished that company's signs which he put on the sides of the truck, covering appellant's signs. He then went to Glenwood and picked up the load destined for Memphis. As usual, expense money for the truck was furnished by King and Underwood paid his personal expenses.

Underwood had previously taken his instructions from Killian. He had received his directions relating to the trip during which he was injured from Killian. After Underwood picked up the load at Glenwood, he was free to choose the best route to Memphis and to stop wherever and whenever he chose along the way. He was restricted as to the time he could drive during any 24-hour period and was required to keep a log of the trip by ICC regulations.

Underwood knew that the trip lease had been used on two occasions when the truck was not hauling commodities which were exempt from ICC regulation but, when hauling exempt commodities, the operation was always conducted under the lease to appellant. Killian was paid 30% Of the compensation White County Ready Mix received in either instance, and presumably the same amount was paid to Underwood in either situation. Killian always paid the second driver, such as Underwood, from the percentage he was paid.

Under the trip lease arrangement between appellant and Indiana Refrigeration Lines, appellant was compensated by the load. Appellant received a settlement sheet from Indiana Refrigeration Lines showing a deduction for a workmen's compensation insurance premium from the compensation that would have otherwise been paid appellant. Such a deduction had been made on settlement sheets sent appellant by Indiana Refrigeration Lines over a period of six years. Appellant's settlement sheet with White County Ready Mix, which included the trip on which Underwood was injured and three other such trips, showed that $27.09 was deducted for workmen's compensation insurance premium from the amount remitted to White County Ready Mix, and it is admitted that appellant charged the owner of this truck for workmen's compensation insurance on some trips where appellant had subleased the owner's truck on a trip lease.

Appellant provides workmen's compensation coverage for drivers on some trip leases and on others, including those to Indiana Refrigeration Lines, premiums are deducted from the payment to appellant. In figuring the premium paid to its insurance carrier on its payroll, appellant does not include the payroll of drivers of trucks owned by or leased to it when deductions have been made for workmen's compensation insurance premiums by a sublessee such as Indiana Refrigeration Lines. The matter had been handled the same way on every such transaction, of which there were more than 75.

Dan King had never been told that a workmen's compensation premium would not be charged to him by appellant when one of his trucks was subleased to a third party by appellant. It was his understanding that appellant arranged for workmen's compensation coverage and billed him for it, and this was the way the matter had been handled as long as he leased trucks to appellant. King understood that when his truck was running for Indiana Refrigeration Lines, the premium was deducted by that concern and passed down to him. He did not understand that there would be two premiums or two deductions. King turned over tickets for gasoline purchased by his drivers to appellant and each ticket showed the name of the lessee and the amount...