Patton v. Patton
| Citation | 308 S.W.2d 739 |
| Decision Date | 13 January 1958 |
| Docket Number | No. 2,No. 45978,45978,2 |
| Parties | Nancy PATTON, Jess Edward Patton III, and Gary Allen Patton, Respondents- Appellants, v. R. J. PATTON and R. F. Boyd, d/b/a Patton & Boyd, and lowa National Mutual Insurance Company, Respondents, and Tri-State Warehousing and Distributing Company, and Casualty Reciprocal Exchange, Appellants |
| Court | United States State Supreme Court of Missouri |
Roy Coyne, Max Patten, Joplin, for appellants Nancy Patton, Jess Edward Patton, III, and Gary Allen Patton.
Herbert Van Fleet, Joplin, Douglas Stripp, Vincent E. Rawson, Kansas City, for appellants Tri-State Warehousing & Distributing Co. and Casualty Reciprocal Exchange. Seiler, Blanchard & Van Fleet, Joplin, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
McReynolds, Flanigan & Flanigan, Laurence H. Flanigan, Carthage, for respondents.
BOHLING, Commissioner.
This is a workmen's compensation case. Claimants, the widow and two infant sons, one by a prior marriage, recovered an award of $12,000 for the death of Jess Edward Patton, Jr. (referred to hereinafter as Jess Patton), and $400 burial expense, against Tri-State Warehousing and Distributing Company, a corporation (referred to hereinafter as Tri-State), and Casualty Reciprocal Exchange, its insurer, as the special employer of said Patton. The award exonerated R. J. Patton and R. F. Boyd, a partnership doing business as Patton & Boyd, and Iowa National Mutual Ins. Co., their insurer, as the general employer of said Patton. Tri-State appealed from the award against it and the claimants have appealed from that portion of the award exonerating Patton & Boyd. The Circuit Court affirmed the award, and Tri-State and the claimants have again appealed.
The main contentions of the defendants are that Jess Patton's death did not arise out of and in the course of his employment and is not compensable, and each contends if his death is compensable the other is liable under the Workmen's Compensation Law.
Jess Patton was self-employed for a while as a driver and owner of a tractor-trailer unit which he leased to and operated for Tri-State. About three months prior to his death he sold his unit, went to work for Patton & Boyd and drove a Patton & Boyd unit under lease to Tri-State. R. J. Patton of Patton & Boyd was his brother. Jess Patton was found dead at Larned, Kan., on the morning of November 22, 1953, while en route as a driver of a Patton & Boyd unit under lease to Tri-State hauling a shipment of explosives from Mead, Neb., to Gallup, N. M., for Tri-State.
Patton & Boyd and Tri-State operated under the Missouri Workmen's Compensation Law and the liability of each is fully insured. It was stipulated that Jess Patton's death was the result of asphyxiation caused by a defective gas stove in a motel and was an accident.
Patton & Boyd and Tri-State are located in Joplin, Mo. Patton & Boyd carried some freight as an interstate private carrier, having an interstate permit therefor, but had no interstate common carrier permit or permit to carry explosives interstate, and did not operate under the Interstate Commerce Commission regulations. Tri-State is primarily an interstate long-haul common carrier of freight, a large portion of its business being the transportation of dangerous articles. Tri-State was engaged in transporting explosives for the Defense Department of the United States Government from Mead, Neb., to Gallup, N. M., having approximately 70 drivers and 100 units engaged in this work. About nine of ten drivers were employees of and operated equipment owned by it. Other drivers and units were furnished under contracts of lease between different carriers and Tri-State. Patton & Boyd thus furnished eight to twelve units to Tri-State.
The lease of 'Unit No. 2423,' the unit operated by Jess Patton on the occasion in question, was negotiated and executed in Joplin, Mo., on October 1, 1953, between Patton & Boyd, lessor, and Tri-State, lessee. The more pertinent provisions here involved are:
Paragraph 5 of the lease stated that the lessee, before taking possession of the equipment, had the equipment inspected by responsible and competent employees of the lessee, and that the equipment complied with certain specified regulations pertaining to the transportation of explosives or other dangerous articles.
Paragraph 7 provided: 'For and in consideration of the leasing of the equipment (and the services of the driver of said equipment) used, the Lessee agrees to pay the Lessor' for the transportation here involved at the rate of seventeen cents per deadhead mile and thirty-one and one-half cents per loaded mile.
Paragraph 9 read: 'The Lessor agrees: (a) to deliver to the Lessee the herein described equipment in good running order and condition; maintain at his expense the same in good working condition in order to meet the Lessee's requirements on equipment; (b) to furnish all necessary oil, gasoline, tires and repairs for the operation of said equipment and to pay all other expenses incident to such operation; (c) to carry at his expense adequate fire, theft, and accident insurance, protecting himself from loss and damage; (d) to drive himself or to furnish at his expense a competent and qualified (subject to Lessee's approval) employee; (e) to carry Workmen's Compensation Insurance, covering himself or said driver and to protect and indemnify Lessee against any loss resulting from injury or death of himself or said driver and from loss or damage resulting from incompetency or dishonesty upon the part of himself or said driver; (f) to pay all welfare benefits and social security and unemployment taxes and to withhold all taxes as required by the U. S. Government; (g) to comply with all laws, rules, and regulations governing the operation of motor vehicles over the highway and that he will pay all fines and penalties due to lack of proper tags and plates, overloads, speeding or traffic violation; and rules by the various Municipal, State and Federal regulatory Bodies having jurisdiction; (h) to receive and put into effect instructions issued by the Lessee Regarding points of origin and destination, safety measures, routes, rest stops, loading, unloading, cargo protections, and any other specific instructions, regarding operating procedure or methods; (i) to allow the Lessee to interline the described trailer with other qualified and competent Common Carriers.'
As required by the lease, operators of leased equipment had to be approved by Tri-State. Jess Patton was an approved operator.
On November 18, 1953, the Tri-State office at Joplin telephoned Patton & Boyd to make available at Mead, Neb., a unit for transporting ammunition and explosives to Gallup, N. M. There was testimony that Tri-State would call for a particular driver because he had been previously approved and on this occasion called for Jess Patton and the unit of equipment operated by him. Patton & Boyd had Jess Patton proceed to Mead.
Tri-State was required to conduct shipments of explosives under regulations of the Interstate Commerce Commission and the Department of Defense of the United States Government. These regulations required drivers to have with them a doctor's certificate, issued within six months, that they were physically fit; required drivers to stop at all railroad crossings; to stop every 50 miles and check the tires; to operate their units a mile apart; to not work over 70 hours in any 192-hour period; and to run only approximately 350 miles in a 10-hour period. Drivers were not permitted to leave a loaded unit unattended at any time. The unit was not permitted to leave a rest stop for a 10-hour period. The driver was not permitted to sleep in the unit. He was required to leave, and required to take a minimum of eight hours' rest.
Tri-State designated in detail the route to be followed, Larned, Kan., and Tucumcari, N. M., as the 'rest stops' on the haul involved, selected the place to park the units at the stops, and arranged for guards to be on duty while any unit was parked at such stops. The motel where Jess Patton stayed the night of his death was within walking distance of where the units had been parked and was used by drivers hauling explosives for Tri-State.
The testimony of Tri-State's witnesses was to the effect that all drivers, Tri-State and drivers of leased units, were subject to Tri-State's supervision while actually hauling the explosives, but that it had nothing to do with what the driver of a leased unit did after he signed out at a rest stop. Prior to loading Tri-State would inspect the equipment and check the driver. If the equipment were defective or the driver failed to meet requirements, the unit was not permitted to proceed and the lessor was notified so that he could make the necessary replacements. If a driver of a leased unit became incapacitated or violated regulations en route, Tri-State would 'hold him up right there,' and would notify the lessor to furnish another driver, but had no right to discharge a driver from Patton & Boyd's service.
Lessors of leased units had no authority to interfere with the regulations or instructions of Tri-State. They could only cease operating under the lease if not satisfied.
Tri-State paid the expenses of their own drivers while on the road and designated where they stayed and what they were to do. It did not pay the expenses of drivers of leased units or designate where they were to stay. However, when authorized by the lessor (they were so authorized by Patton & Boyd), Tri-State advanced money to the drivers of leased units, its general manager testifying the advancements were to pay truck equipment expenses from point of origin to destination but were not for the...
To continue reading
Request your trial
-
Crain v. Webster Elec. Co-op.
...Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306 (Mo.1970); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Patton v. Patton, 308 S.W.2d 739 (Mo.1958); Andra v. St. Louis Fire Door Company, Inc., 287 S.W.2d 816 (Mo.1956); Stroud v. Zuzich, 271 S.W.2d 549 (Mo.1954); Feldmann v. Dot ......
-
Lawson v. Lawson
...Accordingly, it is so ordered. HOGAN and TITUS, JJ., concur. 1 This has been reiterated in several Missouri cases. See Patton v. Patton, Mo., 308 S.W.2d 739, 746; Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 718, 142 S.W.2d 866, 870(6); Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 1......
-
Coleman v. Ringle Truck Lines, Inc.
...Dellinger, 232 N.C. 678, 62 S.E.2d 64 and McGill v. Bison Fast Freight, 245 N.C. 469, 96 S.E.2d 438. Appellants cite also, Patton v. Patton, Mo., 308 S.W.2d 739, 747, in which the loaned driver of a leased unit, transporting explosives interstate was asphyxiated at a lodging place, at a pre......
-
Porter v. Erickson Transport Corp.
...a qualified driver hired by Nikki, and nothing in the agreement required Plaintiff to call in to Erickson during a haul. Patton v. Patton, 308 S.W.2d 739 (Mo.1958), cited by Erickson, was a workers' compensation claim for the death of a driver. He drove a tractor owned by a lessor, under le......