Stroud v. Zuzich
| Decision Date | 13 September 1954 |
| Docket Number | No. 1,No. 43992,43992,1 |
| Parties | Georgla STROUD, George Edward Stroud, and James Carter Stroud, Appellants, and Charles W. Stroud, Jr., Respondent, v. George ZUZICH d/b/a Zuzich Truck Lines and Pacific Employers Insurance Company, Respondents, and Byers Transportation Company, Inc., and Anchor Casualty Company, Appellants |
| Court | Missouri Supreme Court |
John M. Langsdale, Leo T. Schwartz, Kansas City, John A. McGuire, Kansas City of counsel, for plaintiffs-appellants.
Henry W. Buck, W. H. Curtis, Wallace Becker, Kansas City, Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, of counsel, for appellants, Byers Transp. Co., Inc., and Anchor Cas. Co. Irving Kuraner, Kansas City, Kuraner, Freeman & Kuraner, Kansas City, of counsel, for respondents, George Zuzich d/b/a Zuzich Truck Lines and Pacific Emp. Ins. Co.
VAN OSDOL, Commissioner.
In this workmen's compensation case, two claims for compensation under the Workmen's Compensation Law were filed. Claimants in Claim No. 1 are the widow of the deceased employee and employee's minor sons, George Edward and James Carter Stroud. Claimant in Claim No. 2 is Charles W. Stroud, Jr., who alleged he also was a minor son and dependent of employee. Both of the claims were against George Zuzich, doing business as Zuzich Truck Lines, and his insurer, and against Byers Transportation Company, Inc., and its insurer. According to the briefs of the parties, appellants and respondents, the principal question to be determined by the Commission was whether employee Charles W. Stroud was the employee of Zuzich at the time of the fatal accident or whether he, in the circumstances shown in evidence, became the employee, under the borrowed servant doctrine, of Byers Transportation Company.
A referee of the Division of Workmen's Compensation made an award in favor of claimants in Claim No. 1. The referee found that employee died as a result of injuries received in an accident arising out of and in the course of his employment with George Zuzich (Zuzich Truck Lines) and that employee was not the employee of Byers Transportation Company at the time of the accident. The referee also found that claimant in Claim No. 2 had failed to prove he was a dependent of employee. Claimants in Claim No. 1 were awarded total death benefits in the sum of $12,000, and the widow was allowed the further sum of $150 for burial expense.
Applications for review were filed by claimant in Claim No. 2, Charles W. Stroud, Jr., and by George Zuzich (Zuzich Truck Lines) and his insurer; and upon review by the Industrial Commission the award adverse to claimant in Claim No. 2 was reversed, and he was found to have been a dependent of employee. The Industrial Commission affirmed the referee's award in favor of claimants in Claim No. 1, but modified the same to make a difference in the amounts of weekly installments to the several claimants in accommodation of the finding that claimant Charles W. Stroud, Jr., was also a dependent of the employee.
Thereafter appeals were perfected to the Circuit Court of Saline County by George Zuzich and his insurer, and by claimants in Claim No. 1. Upon review the Circuit Court found there was not sufficient competent evidence to warrant the award of the Industrial Commission as against George Zuzich and his insurer, and found there was not sufficient competent evidence to warrant the Industrial Commission's award in favor of Byers Transportation Company and its insurer. Accordingly, the circuit court reversed the award the Industrial Commission had made against George Zuzich and his insurer, and reversed the award in favor of Byers Transportation Company and its insurer, in effect making an award in favor of the claimants in both claims and against Byers Transportation Company and its insurer. (In their brief herein, claimants Georgia, George Edward, and James Carter Stroud, appellants, have abandoned their cross-appeal from that part of the judgment affirming the Commission's finding that Charles W. Stroud, Jr., was a dependent of employee, and herein make no further contention that the circuit court erred in affirming the award and finding of the Industrial Commission as to that issue.)
Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421, 423. We shall examine the evidence as transcribed in the voluminous record.
It was admitted that employee Charles W. Stroud was accidentally injured on March 6, 1950, while driving a tractor which was pulling a trailer over U. S. Highway No. 40 just east of Marshall Junction, from which injury he died the following day. It was admitted that George Zuzich, doing business under the name of Zuzich Truck Lines, was a major employer operating under the Workmen's Compensation Law, and that his liability was insured by Pacific Employers Insurance Company. (Hereinafter we shall sometimes refer to employer George Zuzich and his insurer respondents, as 'Zuzich.') It was further admitted that Byers Transportation Company, Inc., was a major employer operating under the Law and that its liability was insured by Anchor Casualty Company. (Hereinafter we shall sometimes refer to Byers Transportation Company, Inc., and its insurer, appellants, as 'Byers.')
Zuzich was engaged in trucking as a 'contract hauler.' Section 390.020, subd. 3, RSMo 1949, V.A.M.S. Zuzich operated under a contract hauler's permit issued by the Public Service Commission of Missouri to haul fresh meat and other food products, and only for the firms or shippers stated on the back of his contract hauler's permit. Byers was operating as a 'motor carrier', that is, Byers was operating motor vehicles in transporting property for hire as a common carrier, Section 390.020, subd. 2, RSMo 1949, V.A.M.S., under a certificate of the Public Service Commission of Missouri authorizing it to so operate on U. S. Highway No. 40 between the points of St. Louis and Kansas City (and over other routes serving other points). Byers was also operating as a motor carrier under Interstate Commerce Commission authority.
April 18, 1949, employee, Charles W. Stroud, and Zuzich had entered into a contract by which Stroud leased his Ford tractor to Zuzich. Another contract of lease between employee, lessor, and Zuzich, lessee, was entered into February 1, 1950. The latter contract was almost identical with the former. The latter contract was in force at the time of the fatal accident. The contract stipulated a minimum rate of rental for the tractor; and there was a contemporaneous verbal contract stipulating that employee was to be paid a salary or wages. Provisions of the contract of lease pertinent to this review are as follows,
'1. The above described equipment shall be used in the business of the Lessee, being operated under his Permits, both Federal and State, and said equipment shall be operated under and according to the present and future applicable rules and regulations of the various States within, into, or through which said equipment may be operated. It is agreed by and between the parties hereto that nothing herein contained or provided shall be construed as the granting or vesting to the Lessor, of any right, privilege, license, certificate or permit as a motor carrier. * * *
* * *'
Under such a lease, a driver for Zuzich in driving a combination vehicle (the driver's tractor, which he had leased to Zuzich, and a trailer belonging to Zuzich) would operate as follows--a trailer belonging to Zuzich would be loaded with a 'contract load' of merchandise of a shipper with whom and for whom Zuzich had a contract and authority for hauling, and the employee would attach his tractor to the loaded trailer. The driver would also obtain the permit card for the particular trailer, and the manifest and freight bills for the particular load. He would then drive to the designated destination of the shipment and make delivery.
March 5, 1950, Charles W. Stroud picked up a loaded trailer at the Zuzich lot at Kansas City and drove to St. Louis. Having arrived at that destination and having made delivery, he was unable to get a return 'contract load.' He then called at the dock of Byers in St. Louis where an agreement, a so-called 'trip lease', was executed as follows,
'The Byers Transportation Co., Inc., Lessee, Agrees to pay the Lessor, Zuzich Truck Line the sum of fifty three dollars and twenty cents for the use of tractor and trailer or truck named below: (Employee's tractor-truck, and Zuzich's trailer were here named and described.)
'To be used in the transportation of freight covered by Manifest No. 5636 * * *.
'Between the cities of
'St. Louis, Mo. and Kansas City, Mo.
'The Lessor is to pay all operating expenses incurred by the use of the above truck or tractor and trailer.
'The Lessor agrees to deliver the...
To continue reading
Request your trial
-
Crain v. Webster Elec. Co-op.
...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 Delivery Service, 425 S.W.2d 491 (Mo.App.1968); Schepp v. Mid City Trucking Co., 291 S.W.2d 633 (Mo.App.1956); Wittgr......
-
Patton v. Patton
...control. * * *' Additional cited compensation cases sustaining awards against the general or original employer are: Stroud v. Zuzich, Mo., 271 S.W.2d 549, 555; Evans v. Farmers Mut. Hail Ins. Co., 240 Mo.App. 748, 217 S.W.2d 705, 709; Hargis v. United Transports, Inc., Mo.App., 274 S.W.2d 3......
-
Coleman v. Ringle Truck Lines, Inc.
...hauling the explosives involved.' Citing Brown v. L. H. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71, supra. However, in Stroud v. Zuzich, Mo., 271 S.W.2d 549, in which claimant truck operator was an employee of the lessor furnished the lessee as an incident of the lease, that court held......
-
Rorie v. City of Galveston
...Sec. 3a, Vernon's Ann.Tex.Civ.Stat.; Process Engineering Co. of Ft. Worth v. Rosson, Tex.Civ.App., 287 S.W.2d 511 (no writ); Stroud v. Zuzich, Mo., 271 S.W.2d 549; Simmons v. Kansas City Jockey Club, 334 No. 99, 66 S.W.2d 119. In our opinion the tariff does not constitute an attempt by the ......