Knoble v. National Carriers, Inc.

• Decision Date: 09 June 1973
• Docket Number: No. 46829,46829
• Citation: 212 Kan. 331,510 P.2d 1274
• Parties: Deborah J. KNOBLE, widow, et al., Appellees, v. NATIONAL CARRIERS, INC. and Hartford Accident and Indemnity Company, Appellants.
• Court: Kansas Supreme Court

Page 1274

510 P.2d 1274

212 Kan. 331

Deborah J. KNOBLE, widow, et al., Appellees, v. NATIONAL CARRIERS, INC. and Hartford Accident and Indemnity

Company, Appellants.

No. 46829.

Supreme Court of Kansas.

June 9, 1973.

Syllabus by the Court

1. Under K.S.A. 44-556, the appellate jurisdiction of this court in workmen's compensation cases is limited to reviewing questions of law only. Whether the district court's judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact.

2. In reviewing the record to determine whether it contains substantial evidence to support the district court's factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence.

3. The primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.

4. In a workmen's compensation case the record is examined and it is held: (1) there was substantial competent evidence to support the trial court's finding that the relationship of employer and workman existed; (2) such finding did not violate the employer's constitutional right to freedom of contract; and (3) the order of the workmen's compensation director fixing venue was not error.

Garry W. Lassman, of Keller, Wilbert, Palmer & Lassman, Pittsburg, argued the cause and was on the brief for appellants.

Murvyl M. Sullinger, Pittsburg, argued the cause and was on the brief for appellees.

FOTH, Commissioner:

In 1971 Virgil L. Knoble and Dean W. Bateman were joint owners of a 1968 International tractor which they had leased to National Carriers, Inc., a nationwide trucking firm whose chief business was hauling beef for its parent company, National Beef Packing Company, of Liberal, Kansas. Their contract with National Carriers required the partners to furnish not only the tractor but their own services as drivers (or those of acceptable substitutes).

On January 8, 1971, they were hauling one of National Carriers' refrigerated trailers loaded with National Beef's meat to Worcester, Massachusetts. Near Indianapolis, Indiana, they had a collision in which Knoble was killed. His dependents applied for benefits under the workmen's compensation act, which were allowed at both the administrative and district court levels. National Carriers and its workmen's compensation insurance carrier have appealed, contending primarily that Knoble and Bateman were independent contractors, and not employees of National Carriers.

The trial court found, as had the workmen's compensation examiner, that 'the relationship of employer and workman existed between the respondent and the decedent.' Our scope of review is, of course, severely limited:

'Under K.S.A. 44-556, the appellate jurisdiction of this court in workmen's compensation cases is limited to reviewing questions of law only. Whether the district court's judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P.2d 846, 148 A.L.R., Anno., 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P.2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P.2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court's factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. (Evans v. Board of Education of Hays, 178 Kan. 275, 284 P.2d 1068; Barr v. Builders, Inc., 179 Kan. 617, 296 P.2d 1106; Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P.2d 672; Durnil v. Grant, 187 Kan. 327, 356 P.2d 872.) Numerous decisions of like import are cited in 9 West's Kansas Digest, Workmen's Compensation, §§ 1940, 1969, and 5 Hatcher's Kansas Digest (Rev.Ed.), Workmen's Compensation, § 153.' (Jones v. City of Dodge City, 194 Kan. 777, 778-779, 402 P.2d 108, 110.)

In Shay v. Hill, 133 Kan. 157, 158, 299 P. 263, 264, we put it a little differently when we asked 'Was there evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court?' We look, then, for evidence from which the trial court might reasonably have drawn its inference that Knoble and Bateman were employees rather than independent contractors; we are not concerned with evidence from which the contrary inference might be drawn.

Such evidence must, of course, meet certain yardsticks. In Jones, supra, we said:

'It is often difficult to determine in a given case whether a person is an employee or an independent contractor since there are elements pertaining to both relations which may occur without being determinative of the relationship. In other words, there is no exact formula which may be used in determining if one is an employee or an independent contractor. The determination of the relation in each instance depends upon the individual circumstances of the particular case.

'The primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control which renders one a servant rather than an independent contractor. (Evans v. Board of Education of Hays, (178 Kan. 275, 284 P.2d 1068); Davis v. Julian, 152 Kan. 749, 756, 107 P.2d 745; Schroeder v. American Nat'l Bank, 154 Kan. 721, 121 P.2d 186.)' (194 Kan., at 780, 402 P.2d, at 111. Emphasis added.)

See also, McCarty v. Great Bend Board of Education, 195 Kan. 310, 403 P.2d 956.

In particular, therefore, we seek evidence to satisfy the 'primary test' of the 'right of control.' We look first at the description of the parties' relationship given by the surviving partner, Bateman, as summarized by the examiner:

'Bateman related that although the tractor unit was leased to Respondent, he and Knoble drove it. They received their instructions from the dispatcher of National Carriers, Inc. These instructions included what commodity was to be hauled, to whom, where and when it was to be delivered.

'After leaving with a load of a particular commodity, which was usually beef, from Liberal, Kansas, they were to make what was termed 'check calls' each day between 8:00 a. m., and 10:00 a. m. and 4:00 p. m. and 6:00 p.m. to Respondent's dispatcher. The purpose of these 'checks calls' was to inform the dispatcher of their location, distance from destination, approximate arrival time and receive further instructions, if any.

'Upon arrival at a destination, they were required to call Respondent's dispatcher and inform him that they were ready to unload. They would usually then be instructed to call the dispatcher when they unloaded. After unloading the beef, company policy (National Carriers, Inc.) required that the trailer be washed and cleaned for the next load. After unloading and cleaning the trailer, they would then receive instructions from Respondent's dispatcher in regard to their next load; what commodity it was to be, when and where it was to be delivered.

'The return load was usually as close to the midwest as possible and could be any commodity. Bateman and Knoble had no control over the commodity, its destination or arrival time and they had no authority to contract with shippers on their own.

'Upon returned (sic) to the Midwest, Bateman and Knoble would usually call in to Respondent's dispatcher for further instructions. They were then told what they were to do next.

'The tractor unit owned by Bateman and Knoble and leased to National Carriers, Inc., was subject to regular safety inspection by Respondent; was driven on license tags and I.C.C. and K.C.C. permits issued to Respondent; Respondent paid the fuel tax for the tractor and the unit fuel. Respondent carried public liability, property damage and cargo insurance as well as collision insurance on the trailer. Bateman and Knoble insured the tractor unit for collision insurance.

'Bateman and Knoble were pretty well regulated in the time they could spend at home and away from their truck because of the obligation to deliver loads on time.

'If they were at home, they had to make their regular check calls twice daily and were subject to a $25.00 fine if they failed to do so.

'Bateman and Knoble were paid 70 percent of the gross revenue...