Transport Motor Express, Inc. v. Smith

• Decision Date: 04 December 1972
• Docket Number: No. 771A136,771A136
• Citation: 34 Ind.Dec. 42,289 N.E.2d 737
• Court: Indiana Appellate Court
• Parties: TRANSPORT MOTOR EXPRESS, INC., Appellant (Defendant Below), v. Delores J. SMITH et al., Appellees, (Plaintiffs Below), and Riss & Company, Inc., Appellee, (Defendant Below).

Page 737

289 N.E.2d 737

TRANSPORT MOTOR EXPRESS, INC., Appellant (Defendant Below), v. Delores J. SMITH et al., Appellees, (Plaintiffs Below) and Riss & Company, Inc., Appellee, (Defendant Below).

No. 771A136.

Court of Appeals of Indiana, Second District.

Dec. 4, 1972.

Rehearing Denied Jan. 10, 1973. Opinion Superseded 311 N.E.2d 424.

T. E. Cunningham, John T. Rocap, Indianapolis, Rocap, Rocap, Reese & Young, Indianapolis, of counsel, for defendant-appellant.

F. Boyd Hovde, W. Scott Montross, Indianapolis, of counsel, Townsend, Hovde & Townsend, Indianapolis, for plaintiffs-appellees.

Steckbeck & Moore, David A. Steckbeck, William C. Moore, Indianapolis, for defendant-appellee Riss & Co., Inc.

PER CURIAM.

The Industrial Board entered an award ordering that the individual appellees, plaintiffs below (plaintiffs-appellees) as dependents of James Willard Jessee (decedent), recover compensation and burial expenses from appellant, defendant below, Transport Motor Express, Inc. (TMX) and appellee Riss & Company, Inc. (Riss), also a defendant below.

The basic issue is whether the award is contrary to law in holding TMX liable as a co-employer (with Riss). ¹ There is no dispute here (and apparently there was no dispute before the Board) as to dependency, average weekly wage, fatal injury by accident arising out of and in the course of employment, or other ultimate facts essential to a recovery of compensation from decedent's employer or employers whoever they may be.

The subsidiary issue to which this opinion is devoted is essentially the same as that to which we addressed our prior opinion in this same case (Transport Motor Express, Inc. v. Smith (1972), Ind.App., 279 N.E.2d 262, 29 Ind.Dec. 417): Is the Industrial Board's finding of facts with respect to holding TMX to be an employer, specific enough to enable us to make an intelligent review of the Board's decision? That prior opinion directed the Board 'to certify to the Court . . . the finding of facts on which its award is based, said finding being made specific enough to permit this court intelligently to review said award.' The Board has now certified to us a more detailed finding which, as we shall attempt herein to explain, lacks the requisite specificity in the area of the dispute which the award resolves.

We summarize this latest finding as follows (adding for background understanding a few undisputed facts gleaned from the briefs and the record):

Decedent was a resident of Texas who worked out of Riss' Dallas, Texas, terminal as an over-the-road driver for Riss, whose principal office was in Kansas City, Missouri. While decedent was at McAllister, Oklahoma on February 3, 1967, (apparently in the course of his work as a driver for Riss) a cargo of bombs became available to be transported from Crane Naval Depot at Crane, Indiana, to some point in the far west. Riss instructed decedent to drive (in a tractor permanently leased by J & H Leasing Corp. to Riss) to Terre Haute, Indiana. On arriving at Terre Haute decedent reported to the TMX terminal where he entered into a trip lease of himself and his equipment to TMX. (This lease seems to have been entered into because as the Board found, Riss 'had no Interstate Commerce Commission or Public Service Commission authority to carry explosives in Indiana or between Crane, Indiana, and Joliet, Illinois', while TMX did have.) Upon execution of the trip lease TMX furnished decedent placards which were placed in the tractor he was driving. Those placards showed TMX as the lessee of the equipment and displayed the ICC and PSC numbers and the authority of TMX. The 'trip' contemplated in the lease was apparently from Terre Haute to Crane to Joliet, Illinois. The decedent then drove the tractor he had thus leased from Terre Haute to Crane and picked up a load of explosives. While enroute from Crane to Joliet with that load, and before the trip called for by the lease had been completed, decedent, on February 7, 1967, sustained the accidental injury from which he died that same day.

The Board also found:

'While operating under the said trip lease, James Willard Jessee was required by Transport Motor Express, Inc. to follow a prescribed route of travel and to keep a log of his activities which was furnished to Transport Motor Express, Inc.

'During the trip lease, Transport Motor Express, Inc. had the right to stop the driver and equipment and to require replacement of either the driver or equipment for violation of ICC or PSCI rules and regulations.'

The present action was commenced before the Industrial Board of Indiana in February of 1969. The Board found, however, that prior thereto:

'Plaintiff, Delores Ann Jessee individually and on behalf of her minor children, James Michael Jessee, Gina Renee Jessee and Kenneth Wayne Jessee, entered into a compromise settlement agreement in Texas with Riss & Company, Inc. by and through its insurer, Security Mutual Casualty Company whereby Riss & Company, Inc., paid Delores Ann Jessee the sum of $5200.04 on her own behalf, plus $500.00 for reimbursement of funeral expenses, and $5515.04 for and on behalf of the minor children, said compromise having been approved by the Industrial Accident Board of the State of Texas on July 14, 1967, Cause No. F62408, Claim No. 97229.

'The liability of defendant Transport Motor Express, Inc. to plaintiffs was not an issue in the proceedings hereinbefore described and such liability was not adjudicated by that proceeding.

'At the time of the injuries causing his death on February 7, 1967, decedent James Willard Jessee was an employee of both Transport Motor Express, Inc. and Riss & Company, Inc., and he was within the scope and course of his said employment.

'Both defendants should pay in equal portions the statutory funeral expense up to the maximum $750.00.

'Plaintiffs are entitled to a recovery against defendants, and each of them, on plaintiffs' Form 10 application filed February 5, 1969.

'Defendant Riss & Company is entitled to a credit against its liability hereunder for the sums it paid plaintiffs pursuant to the order of the Industrial Accident Board of the State of Texas described in a previous finding hereof.'

In most of the cases in which the Appellate Court of Indiana has reviewed decisions of the Industrial Board of Indiana during the half-century between creation of the Board and replacement of the Appellate Court by the Court of Appeals, relatively little attention was paid to the statutory requirement that an appealable award (i.e., an award made by the full board after review of a hearing member's award) must be filed 'with the finding of the facts on which it is based.' ² But following Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337, 16 Ind.Dec. 704, some Appellate Court judges began to express the view that specific findings should be required. See Block v. Fruehauf Trailer Division (1969), 146 Ind.App. 70, 252 N.E.2d 612, 19 Ind.Dec. 489; Miller v. Barrett (1971), Ind.App., 269 N.E.2d 772, 25 Ind.Dec. 547. Since the advent of the Court of Appeals, January 1, 1972, its Second District has directed the Industrial Board in several cases ³, including this one, to make further findings of fact 'specific enough to permit this court intelligently to review said award.' ⁴ Yet we have obviously failed to be specific enough ourselves (at least in this case) to enable the Board to understand what is needed. We shall here attempt to correct that error.

The foundation on which we build our attempt is summarized in the following excerpts from the authoritative works of three widely acclaimed experts in the field. These quotations, incidentally, demonstrate that the requirement of specificity in administrative findings of fact is not an invention of the current personnel of this court or the Supreme Court. Dean Small several years ago commented on Industrial Board findings thus (citations omitted):

'While it has been generally held that a finding is sufficient if it recites the general prerequisite to an award, the Appellate Court at one time considered such findings as mere conclusions of law. That Court held that as conclusions, they had to be supported by rather precise statements of ultimate fact. If such statements were not included in the finding, the Appellate Court considered itself free to disregard the finding. These cases were however, disapproved in 1919, and overruled in 1921, when the Appellate Court turned to a more lax attitude toward findings in compensation cases. The Appellate Court has reiterated several times that a sufficient finding exists in a compensation case if the Board mouthes the general language of the statute. Even a motion to make more specific may be denied if the finding embraces the statutory language, and any other matter will be relegated to surplusage.

'It seems that there is now no need for the Board to state in its award the method by which it reaches its results. This is conceived on the theory that the Act calls for a summary manner to procedure. The Appellate Court has held that the term summary means 'concise, condensed to the utmost degree, performed without formality,' and that the Act manifests the intention of the Legislature that speed should stand out boldly.

'However, it seems equally appropriate that a summary manner of procedure should contemplate some reasonable basis upon which to ground administrative action. Certainly the Legislature, in assigning speed as an objective of the Compensation Act, did not intend to call for arbitrary action based upon only an administrative hunch or a feeling of compassion for a claimant. The very purpose of requiring findings to be made is to enable a court on review to decide whether there was legal fundation for an award. If theIndustrial Board is allowed to state conclusions of law without precision, no reviewing court can fathom the operations leading to an award. Moreover, the parties to the proceedings...