Transport Motor Express, Inc. v. Smith, 574S99

• Decision Date: 21 May 1974
• Docket Number: No. 574S99,574S99
• Citation: 42 Ind.Dec. 48,262 Ind. 41,311 N.E.2d 424
• Parties: TRANSPORT MOTOR EXPRESS, INC., Appellant (Defendant-Below), v. Delores J. SMITH et al., Appellees (Plaintiffs-Below), and Riss and Company, Inc., Appellee (Defendant-Below).
• Court: Indiana Supreme Court

Page 424

311 N.E.2d 424

262 Ind. 41

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

No. 574S99.

Supreme Court of Indiana.

May 21, 1974.

[262 Ind. 42] T. E. Cunningham, John T. Rocap, Indianapolis, for appellant; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

F. Boyd Hovde, W. Scott Montross, Indianapolis, for appellees (plaintiffs below) Delores J. Smith, James Michael Jessee, Kenneth Wayne Jessee, Gina Renee Jessee; Townsend, Hovde & Townsend, Indianapolis, of counsel.

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

ON PETITION TO TRANSFER

GIVAN, Justice.

On February 7, 1967, the decedent, James Willard Jessee, died as a result of accidental injuries received during his operation of a truck, owned by Riss & Company, Inc. The question for decision in this case is whether or not Transport Motor Express, Inc., was also to be considered an employer of Jessee by reason of the fact he was operating a truck which had been leased by him as agent for Riss to Transport Motor Express, Inc., for the purposes of a single trip.

The plaintiffs below were Jessee's widow and his three minor children, each of whom was his dependent at the time of his death.

The opinion of the Court of Appeals which we are reviewing today was handed down December 4, 1972, and reported in 289 N.E.2d 737, 34 Ind.Dec. 42. In a prior opinion reported in 279 N.E.2d 262, 29 Ind.Dec. 417, the Court of Appeals had returned this case to the Industrial Board stating that the Board's findings of fact were insufficient and directing that the Board make additional findings of fact to support its award and specific enough to permit the Court of Appeals 'intelligently to review said award.'

The Industrial Board, pursuant to the opinion by the Court of Appeals, submitted additional findings of fact. However, the Court of Appeals in the decision which we are now reviewing still contends that even these additional findings of fact submitted by the Industrial Board are insufficient for proper review. We disagree with the Court of Appeals and find that upon examining the findings of fact by the Industrial Board that those findings do, in fact, meet the standards which are set out in the Court of Appeals' decision and with which we agree.

The Court of Appeals has correctly stated the law, but has failed to apply that law to the facts in the case at bar. The amended findings of fact filed by the Industrial Board with the Court of Appeals, omitting caption and signatures, reads as follows:

'BE IT REMEMBERED, that on the 1st day of March, 1972, the Court of Appeals of Indiana (Second District) rendered a directive to the Full Industrial Board of Indiana, in which said directive the Full Industrial Board of Indiana was directed to certify to the said Court of Appeals finding of facts upon which the Award in said cause was based. In conformity with the said directive, the said Full Industrial Board of Indiana now makes the following finding of facts:

'On February 7, 1967, at approximately 3:45 A.M. in Will County, Illinois, plaintiff's decedent, James Willard Jessee, died as a proximate result of accidental personal injuries received by him on February 7, 1967, in Will County, Illinois.

'The injuries to James Willard Jessee causing his death occurred when he was crushed between the rear of a semi-trailer and the cab of a semi-trailer in Will County, Illinois.

'At the time of his death, James Willard Jessee was employed at an average weekly wage in excess of the maximum.

'James Willard Jessee was survived by his wife, Delores Jessee Smith, and three minor children, James Michael Jessee, born March 27, 1961; Kenneth Wayne Jessee, born August 10, 1962; and Gina Renee Jessee, born September 19, 1966, each of whom was wholly dependent upon James Willard Jessee at the time of his said death.

'Defendants Transport Motor Express, Inc. and Riss & Company, Inc. each had actual knowledge of the decedent's injuries and death on or about February 7, 1967.

'After being advised by Transport Motor Express, Inc. of the availability of material to be transported from Crane Naval Depot in Crane, Indiana, James Willard Jessee was sent on February 3, 1967, by Riss & Company, Inc. from McAlester, Oklahoma, to Terre Haute, Indiana, in Tractor No. 645 which was owned by J & H Leasing Corp. and permanently leased by it to Riss & Company, Inc.

'At the time James Willard Jessee was dispatched by Riss & Company, Inc. to Terre Haute, Indiana, it was intended that James Willard Jessee trip lease himself and his equipment to Transport Motor Express, Inc. and proceed from Terre Haute, Indiana, to Crane, Indiana, where he would load explosives which he would then transport to Joliet, Illinois.

'Riss & Company, Inc., at all relevant times, had no Interstate Commerce Commission or Public Service Commission authority to carry explosives in Indiana or between Crane, Indiana, and Joliet, Illinois.

'Transport Motor Express, Inc. at all times relevant had Interstate Commerce and Public Service Commission of Indiana operating authority to carry explosives from Crane, Indiana, to Joliet, Illinois.

'Riss & Company, Inc. had no terminal or place of business in Terre Haute, Indiana, or Crane, Indiana, or Joliet, Illinois. Transport Motor Express, Inc. had a terminal in Terre Haute, Indiana, and Joliet, Illinois.

'On or about February 5, 1967, James Willard Jessee reported to the freight terminal of Transport Motor Express, Inc. in Terre Haute, Indiana, and, on behalf of Riss & Company, Inc., entered into the trip lease agreement. He then acquired from Transport Motor Express, Inc. placards which were placed on the tractor he was driving and which showed Transport Motor Express, Inc. as the lessee of the equipment and set forth the Interstate Commerce Commission numbers and Public Service Commission of Indiana numbers authorizing the travel to and from Crane, Indiana, and the authority of Transport Motor Express, Inc. to transport the explosives in question.

'James Willard Jessee then drove the tractor and trailer which were the subject of the trip lease to Crane, Indiana, where the trailer was loaded with explosives.

'James Willard Jessee's destination under the trip lease was the freight terminal of Transport Motor Express, Inc. in Joliet, Illinois, at which point the trip lease was to terminate.

'At the time of his death as aforesaid, James Willard Jessee was still enroute to the terminal of Transport Motor Express, Inc. in Joliet, Illinois, and had not completed the trip called for by said lease.

'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.

'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 the 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.'

The Court of Appeals takes the position that the above findings of fact are fatally defective because they fail to resolve the dispute between the parties as to the 'factual inferences' to be drawn from the trip lease agreement when that agreement is considered with reference to what took place before and after its execution.

The Court of...