Kerr v. Akard Bros. Trucking Co.
| Decision Date | 14 October 1963 |
| Docket Number | No. 7194,7194 |
| Citation | 385 P.2d 570,1963 NMSC 185,73 N.M. 50 |
| Parties | Annetta KERR, Claimant-Appellant, v. AKARD BROTHERS TRUCKING COMPANY, James Hamilton Equipment Rentals, Inc., and Fireman's Fund Insurance Company, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Easley & Pyatt, Hobbs, for appellant.
Sutin & Jones, Albuquerque, for Akard Bros. Trucking Co.
McAtee, Toulouse, Marchiondo, Rudd & Gallagher, Albuquerque, for J. Hamilton Equip. Rentals and Fireman's Fund Ins. Co.
Upon consideration of motion for rehearing, the original opinion heretofore filed is withdrawn and the following substituted therefor.
This appeal results from the denial of benefits to appellant under the workmen's compensation law. Suit was filed by appellant against appellees for workmen's compensation because of the death of her husband, James Kerr, on January 13, 1960, in an accident allegedly arising out of and in the course of his employment by appellee, Akard Brothers Trucking Company, hereinafter referred to as 'Akard,' and appellee, James Hamilton Equipment Rentals, Inc., hereinafter referred to as 'Hamilton.' It was alleged and appears that appellee, Fireman's Fund Insurance Company, hereinafter referred to as 'Fireman's Fund,' was the workmen's compensation insurer of Hamilton, and that Akard carried no insurance.
Hamilton and Fireman's Fund answered and denied all the material allegations of the claim, and alleged that deceased was an employee of Akard. They filed a cross claim asserting that if they were held liable on the claim, they would be entitled to judgment over against Akard.
Akard denied that the death of James Kerr arose out of and in the course of his employment by Akard, and all the material allegations of the claim, and as an additional defense alleged that at the time and place of his death, James Kerr was delivering a truck to Akard on behalf of Hamilton, and was in the employ of Hamilton. Akard also alleged it was not an employer subject to the workmen's compensation act.
After a trial, the court made separate findings and conclusions on the Akard and Hamilton claims.
As to Akard the court found it to be engaged in the business of renting dump trucks to general contractors. Compensation was paid at a specified rate per ton from which 'there was to be deducted drivers' wages, a percent of the total wages to cover payroll taxes and insurance, and fuel and other miscellaneous costs.' The net amount remaining was Akard's rental or compensation for the use of the trucks.
The court also found that Akard never carried workmen's compensation insurance, nor had it ever elected to come within the act; that Akard had drivers 'available to go to the jobs with the trucks rented to the contractor from the point of origin of the trucks'; that it 'employed' the drivers who drove its trucks; that it 'never paid drivers any wages or earnings or compensation for labor, and did not carry them on any payroll as employees'; 'that there was no agreement between Hamilton and Akard to reimburse or to pay Hamilton (it would appear this should be Akard) for move-in or move-out costs, including payment of wages to Akard's driver to move trucks to or from the job site.'
The court concluded that Akard was not engaged in an extra-hazardous employment as defined in Sec. 59-10-10, N.M.S.A.1953, and did not have four or more workmen employed as required by Sec. 59-10-12(e) (), N.M.S.A.1953; that at the time of his death, decedent 'was not engaged in extra-hazardous employment' for Akard; that Akard was not subject to the workmen's compensation act or liable for benefits thereunder.
The court's findings as to Hamilton were to the effect that Akard operated a truck hauling business with a fleet of dump trucks and sub-contracted with road contractors to haul sand and gravel on various road projects. (Note that in findings as to Akard referred to above, it was found that Akard was 'in the business of renting dump trucks to general contractors'); that Akard and Hamilton had an oral sub-contract whereby Akard was to haul sand and gravel for Hamilton, by the terms of which Akard 'furnished the trucks and secured the drivers to haul * * *' and was to be paid a gross tonnage; Akard was to pay for all oil, gas and repairs on the trucks; Hamilton was to deduct from the gross tonnage 'the Akard payrolls, withholding from the same social security, withholding tax, and workmen's compensation deductions * * *.' The court made the identical finding concerning move-in and move-out costs as to Hamilton as it did as to Akard. It further found that Akard 'employed' its drivers, prepared its own time sheets which were submitted to and paid by Hamilton; that no time sheet was submitted covering move-in or more-out wages for 'Akard drivers' in the job where Kerr had worked; that the sub-contract of Akard and Hamilton was completed at 5:00 P.M. on January 12, 1960; that if decedent was an employee of Hamilton his employment ended at that time and that thereafter he was under the exclusive control and employment and was working for the benefit of Akard, and on January 13, 1960, when he met his death he was not an employee of Hamilton.
The court concluded that at the time of the accident resulting in his death, decedent was not an employee of Hamilton, but was an employee of Akard, and that no recovery could be had against Hamilton.
Thus it is seen that no recovery was allowed because the court felt that although decedent may have been an employee of Hamilton prior to 5:00 P.M. on January 12, 1960, such employment had ceased, and that at the time of the accident resulting in his death he was an employee of Akard, an employer not covered by the act because not engaged in an extra-hazardous occupation under the statute (Sec. 59-10-10, N.M.S.A.1953), and not employing as many as four workmen.
Appellant relies on three points for reversal of the judgment. She argues that the court erred in deciding the issues as it did because (1) the decedent's death arose out of and in the course of his employment with Hamilton, or (2) with Akard; or (3) with both Hamilton and Akard.
At the outset we are met with the fact that appellant has failed to attack the findings made by the court as required by our rule 15(6) (Sec. 21-2-1(15)(6), N.M.S.A.1953). She starts her argument under Point I by quoting evidence on the subject of drive-in and drive-out time, and follows this with testimony on the handling of payrolls and workmen. Appellant then cites cases asserted to be in point on the question of whether under the...
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