Motor Dispatch, Inc. v. Snodgrass
| Decision Date | 10 May 1977 |
| Docket Number | No. 2--1174A272,2--1174A272 |
| Parties | MOTOR DISPATCH, INC., Appellant, v. Barbara SNODGRASS et al., Appellees. |
| Court | Indiana Appellate Court |
Michael V. Gooch, Harrison, Moberly & Gaston, Indianapolis, for appellant.
John H. Baldwin, Indianapolis, for appellee.
This is the second appeal of this case. 1
Appellee Barbara Snodgrass' husband, Jerry Leon Snodgrass, was fatally injured while driving a truck owned by Waymon Austin and Marjorie Austin and under triplease to appellant Motor Dispatch, Inc. On behalf of herself and children she successfully claimed compensation from both the Austins and Motor Dispatch. On the latter's appeal the Third District of this court affirmed the award on September 19, 1973, but remanded the case to the Industrial Board of Indiana 'with instructions to determine the respective liability of both employers under said Section 40--1414', now § 22--3--3--31 Ind.Ann.Stat. (Burns Code Ed., 1974), which reads:
Motor Dispatch, Inc. v. Snodgrass (1973), 157 Ind. 591, 301 N.E.2d 251.
Pursuant to the remand, the Board made the following pertinent findings and award:
'It is further found that there were no separate or distinct wage agreements between the co-employers.
'It is further found that consideration to plaintiffs' decedent, by arrangement, would have been paid by Motor Dispatch, Inc. through Wayman Austin on the following weekend.
'It is further found that Motor Dispatch, Inc. is responsible for the full recovery hereunder.
'AWARD
'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the plaintiffs, Barbara Ann Snodgrass, Ginger Renee Snodgrass and Sheryl Lynn Snodgrass, shall have and recover of and from the defendant, Motor Dispatch, Inc., compensation at the rate of $57.00 per week for a period of 500 weeks, but not to exceed the total sum of $25,000.00; said compensation to begin on May 21, 1971, and to continue until otherwise terminated in accordance with the provisions of the Workmen's Compensation Act of Indiana.
'It is further ordered that all accrued payments shall be brought up to date, paid in cash and in a lump sum without the deduction of interest.
'It is further ordered that compensation for the minor children, Ginger Renee Snodgrass and Sheryl Lynn Snodgrass, shall be paid to Barbara Ann Snodgrass, their mother and natural guardian.
'It is further ordered that all compensation by virtue of this award shall be paid direct to plaintiffs except as hereinafter ordered.
'It is further ordered that the fees of the plaintiffs' attorney, shall be: a minimum of $25.00 and, in addition thereto: 20% upon the first $1,000 recovered; 15% upon the second and third $1,000 recovered; and 10% upon all sums recovered in excess thereof; said fees to be paid by the defendant, Motor Dispatch, Inc., direct to plaintiffs' attorney, JOHN H. BALDWIN, with credit to the defendant against the compensation herein awarded plaintiff for all sums paid out as attorney fees in accordance with this award.'
Appellant Motor Dispatch, Inc. contends in this second appeal that the Board's second decision is not supported by specific findings of fact and is contrary to law because Motor Dispatch had no wage liability to decedent, Jerry Leon Snodgrass. The views expressed in the opinion rendered in the first appeal of this case are binding on us in the disposition of this second appeal. That opinion established that at the time of his fatal injury the plaintiff-appellee's decedent, Jerry Leon Snodgrass, was in the joint service of defendant-appellant Motor Dispatch, Inc. and defendant-appellee Waymon Austin and that it was the duty of the Industrial Board to determine the respective liability of the two employers under what is now Ind.Ann.Stat. § 22--3--3--31 (Burns Code Ed., 1974) which provides that 'such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employees.' On remand the Board made no express finding of the respective wage liability of these two employers to the decedent but found
'. . . that there were no separate or distinct wage agreements between the co-employers.
'. . . that consideration to plaintiff's decedent, by arrangement, would have been paid by Motor Dispatch, Inc., through Waymon Austin on the following weekend.'
As explained by the evidence, those enigmatic findings mean that at the time of his fatal accident decedent was operating employer Waymon Austin's truck for employer, Motor Dispatch, Inc., under a written 'trip-lease' which decedent executed as Austin's agent and which provided for Motor Dispatch to pay a stated sum to Austin for the use of the truck and driver to transport a cargo to its destination, but which made no provision for anyone to pay decedent anything for his service as driver. However, there was a wage arrangement between Austin and decedent whereby Austin paid decedent twenty-five percent of the truck's earnings each week and Austin retained the rest, less trip expenses. Thus, as in any successful business, the wages Austin paid his employee came from the money paid to him by his customer, Motor Dispatch, but there is no evidence of wage liability by Motor Dispatch to decedent.
It is true, of course, that the trip lease agreement gave Motor Dispatch sufficient right of control over decedent driver to justify the finding that Motor Dispatch was a joint employer with Austin, but nothing in the evidence made Motor...
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