White v. Western Commodities, Inc.

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and COLWELL; COLWELL
• Citation: White v. Western Commodities, Inc., 295 N.W.2d 704, 207 Neb. 75 (Neb. 1980)
• Decision Date: 15 August 1980
• Docket Number: No. 42903,42903
• Parties: Willard W. WHITE, Appellee and Cross-Appellant, v. WESTERN COMMODITIES, INC., Appellee and Cross-Appellant, and Curtis, Inc., Appellant and Cross-Appellee.

Page 704

295 N.W.2d 704

207 Neb. 75

Willard W. WHITE, Appellee and Cross-Appellant, v. WESTERN COMMODITIES, INC., Appellee and Cross-Appellant, and Curtis, Inc., Appellant and Cross-Appellee.

No. 42903.

Supreme Court of Nebraska.

Aug. 15, 1980.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. In reviewing the judgment of the compensation court, we are bound by the findings of fact made by that court after rehearing to the extent that the same have support in the evidence. Findings of fact made by the Workmen's Compensation Court after rehearing have the effect of a jury verdict and may not be set aside on appeal unless clearly wrong.

2. Workmen's Compensation. In the absence of any showing that there was any joint arrangement as to salary, wages, hours of employment, or term of service, there cannot be any joint employment.

3. Workmen's Compensation: Burden of Proof. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the injury sustained was caused by, or related to, the accident and was not the result of the normal progression of the plaintiff's pre-existing condition which would have been sustained in the absence of the accident.

Michael O. Johanns of Peterson, Bowman & Johanns, Lincoln, for appellee and cross-appellant.

Baylor, Evnen, Baylor, Curtiss & Grimit, Lincoln, for appellee and cross-appellant Western.

Dennis M. Coll of Raymond, Olsen & Coll, P. C., Scottsbluff, for appellant and cross-appellee White.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and COLWELL, District Judge.

COLWELL, District Judge.

This is an appeal from an award made by the Workmen's Compensation Court in favor of Willard W. White, plaintiff, against Western Commodities, Inc. (Western), and Curtis, Inc. (Curtis), defendants. Defendant Curtis appeals; plaintiff and defendant Western cross-appeal. We affirm in part and reverse in part. Plaintiff filed his petition with the Nebraska Workmen's Compensation Court on November 22, 1977, alleging a compensable injury from a fall on January 8, 1977, in Salina, Kansas, in the course of his employment as a truckdriver for Western. Western answered by general denial and, thereafter, with the consent of plaintiff, filed a third-party petition alleging that Curtis was either plaintiff's employer, or a joint employer of plaintiff with Western. Curtis answers denying that plaintiff was an employee. All issues were joined and hearing was had before a single judge of the Workmen's Compensation Court, who made an award in favor of plaintiff against both defendants as joint employers. Plaintiff refused the award and was granted a rehearing before a three-judge panel of the Workmen's Compensation Court. At trial the three-judge panel found that on January 8, 1977, plaintiff was jointly employed as a truckdriver by Curtis and Western when he suffered injuries to his back as a result of an accident arising out of and in the course of his employment by defendants when he slipped and fell from the truck-tractor frame; that as a result of that accident and injury the plaintiff incurred hospital and medical expenses and was temporarily totally disabled for a period of 623/7 weeks from January 8, 1977, to March 21, 1978, and, thereafter, suffered 10 percent permanent partial disability to his body as a whole. The panel found that at the time of the accident and injury the plaintiff was earning an average weekly wage of $250.36, entitling him to benefits of $100 per week for 623/7 weeks for temporary total disability and, thereafter, in addition thereto, the sum of $16.69 per week for 2374/7 weeks for 10 percent permanent partial disability to the body as a whole. The panel also awarded plaintiff $400 compensation for waiting time pursuant to Neb.Rev.Stat. § 48-125 (Reissue 1978), an attorney fee in the sum of $150, and an opportunity to avail himself of rehabilitation benefits pursuant to Neb.Rev.Stat. § 48-162.01 (Reissue 1978). The panel denied plaintiff's claim for expenses incurred while receiving treatments in a Veterans Administration Hospital in the sum of $4,000, citing Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978).

Curtis appeals from the award, assigning as error the failure to find that: (1) Curtis was not a joint employer; (2) The panel had no jurisdiction to determine the joint employer status of defendants; (3) Plaintiff was not injured in the scope of his employment with Curtis; and (4) Plaintiff was not entitled to workmen's compensation benefits.

Western cross-appeals, claiming as error: (1) The finding that plaintiff was a joint employee of Curtis and Western; (2) The failure to find that if plaintiff was an employee solely of Curtis; (3) The failure to find that plaintiff was entitled to any workmen's compensation benefits, those benefits were the sole obligation of Curtis; (4) The finding that there was no basis for reasonable controversy as to the first 8 weeks of plaintiff's disability and in awarding a waiting time penalty and attorney fees; and (5) The finding that plaintiff was entitled to vocational rehabilitation services.

Plaintiff cross-appeals, claiming that he should have been allowed the Veterans Administration Hospital expenses.

"The findings of fact made by the Nebraska Workmen's Compensation Court after rehearing shall have the same force and effect as a jury verdict in a civil case." Neb.Rev.Stat. § 48-185 (Reissue 1978). "In reviewing the judgment of the compensation court, we are bound by the findings of fact made by that court after rehearing to the extent that the same have support in the evidence. Findings of fact made by the Workmen's Compensation Court after rehearing have the effect of a jury verdict and we may not set them aside on appeal unless clearly wrong." Wolfe v. American Community Stores, 205 Neb. 763, 764, 290 N.W.2d 195, 197 (1980). See, also, Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N.W.2d 92 (1977).

Plaintiff, now age 54, is an over-the-road truckdriver with more than 25 years experience, earning upwards to $200 per week. In 1945, he received a medical discharge from the U. S. Navy for a training injury described as a herniated intervertebral disc, and received disability ratings ranging from 10 percent to 40 percent until 1953 when they were discontinued. Early in 1976, he became employed as a truckdriver by Platt Grain Co., Inc., Scottsbluff, Nebraska, (Platt Grain), which was managed and operated by Bruce Platt (Platt). In 1976, Platt Grain was financially troubled and dissolved by law. In 1976, Platt formed Western which then carried on the former business of Platt Grain, and plaintiff became an employee of Western. At all times herein plaintiff claimed to be an employee of Western.

In December 1976, Platt negotiated leases of four truck-tractors to Curtis by separate written leases for 30-day renewable periods. The lease of the truck-tractor involved here shows Platt Grain Co., Inc., as lessor. Platt never divulged to Curtis that Platt Grain had been dissolved and that Western was its successor. The lease was signed in the Curtis home office in Denver, Colorado and Platt was accompanied there by the plaintiff, who was interviewed by Curtis officers, completed an employment-type application form, and successfully completed a driver's examination required by Curtis.

The lease is on a printed form provided by Curtis. Most of the covenants therein relate to the duties and responsibilities of the lessor (Western). Also of significance is the following from the lease: "9. It is the expressed intent of the parties that this agreement shall not create an Employer-Employee relationship, and the Lessor, his operators, drivers and employees shall be deemed to be Independent Contractors during the entire term of this lease.

"10. Lessor shall carry a policy of Workmen's Compensation and Employers' Liability insurance on himself, his operators, drivers and employees and said Lessor shall pay the premiums on said Policies.

"13. Lessor shall be responsible for the payment of all . . . fees that may be assessed on the Lessor's personnel, equipment or the operation thereof.

"14. Lessor shall be responsible for the withholding of and the payment of all taxes, including, but not limited to, withholding taxes, social security taxes, unemployment insurance tax, . . . against the Lessor, his operators, drivers or employees . . ..

"18. Lessor may, on behalf of Curtis, hire or employ properly licensed operators or drivers, to operate the above described equipment. All operators and drivers are subject to approval by Curtis . . ..

"21. The lessor, his operators, drivers and employees, with respect to the movement of traffic on this equipment, shall at all times be subject to the control, management, direction and orders of Curtis." (Emphasis supplied.)

On January 3, 1977, plaintiff left Scottsbluff, Nebraska, driving the leased truck-tractor hauling a Curtis-owned trailer with cargo to Jackson, Mississippi, where he received instructions from Platt to pick up a backhaul load of fresh chickens for delivery to Billings, Montana. On the backhaul trip plaintiff stopped at a Salina, Kansas, truck stop on January 8, 1977, during a snowstorm; the temperature was below zero. Mechanical trouble developed with the truck-tractor brakes and with the refrigeration unit (reefer) on the front of the trailer. While standing on the truck-tractor frame changing the filters on the reefer, plaintiff slipped and fell to the ground, where he laid for about 30 minutes. Plaintiff claims that he injured his shoulder and back and that he suffered frostbite to his face. Fellow truckers helped him to his truck cab. He notified Platt of the accident and his injury and stayed 2 days in Salina, Kansas, in the truck cab. He then drove to his home in Minatare, Nebraska, where Platt picked up the truck-tractor and the trailer. Plaintiff has never driven a truck since.

...