Wilbeck v. Grain Belt Transp. Co., s. 40,393 and 40,400

• Decision Date: 03 July 1957
• Docket Number: Nos. 40,393 and 40,400,s. 40,393 and 40,400
• Parties: Floyd H. WILBECK, Appellant, v. GRAIN BELT TRANSPORTATION COMPANY, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 725

313 P.2d 725

181 Kan. 512

Floyd H. WILBECK, Appellant, v. GRAIN BELT TRANSPORTATION COMPANY, Appellee and Cross-Appellant.

Nos. 40,393 and 40,400.

Supreme Court of Kansas.

July 3, 1957.

Syllabus by the Court.

1. In a workmen's compensation case where claimant hauled freight for respondent, whose business was exclusively that of motor transportation of interstate and intrastate shipments of freight under permits of the Interstate Commerce Commission and the Kansas Corporation Commission, as is more fully set out in the opinion, the record is examined, and it is held, the trial court was correct in its computation and determination of the award, and in its findings that the relationship of employer and workman existed between the parties and the parties are governed by our workmen's compensation act.

2. Where, in a workmen's compensation case, there is substantial and competent evidence to support the trial court's findings relative to matters set out in the preceding paragraph, those findings will not be disturbed on appeal.

Richard M. Beary, Kansas City, Mo., argued the cause, and Austin B. Speers, John P. Haley, Jr., and James J. Crisp, Kansas City, Mo., were with him on the briefs, for appellant.

William Hergenreter, Topeka, argued the cause, and E. Newton Vickers, Topeka, was with him on the briefs, for appellee and cross-appellant.

ROBB, Justice.

This is an appeal in a workmen's compensation case. The trial court affirmed but modified the award of the commissioner. The claimant appealed from the modification of the award and the respondent cross-appealed from the allowance of any award.

The respondent freight transportation company carried on its business exclusively by leasing trucks, tractors, and trailers. It hired about fifty truck drivers. Some owned their own trucks and some drove trucks owned by third parties. Claimant was an owner-driver and prior to the day in question, between April 26, 1955, and July 12, 1955, he had made nine trips for respondent for which he had received $728.52. Each of these trips was based on a one-way lease contract whereby claimant leased his truck to respondent and furnished his services as a driver thereof. For this he received 70% of the gross freight charges, from which 15% was paid for trailer rental to some independent trailer-renting concern. He was paid directly by respondent. Other truck owners could, and in some instances did, hire drivers who were paid 20% of the aforementioned 70% of the gross freight charges.

All shipments were governed and controlled by regulations of the Interstate Commerce Commission or the Kansas Corporation Commission under permits issued to respondent and the only authority by which claimant hauled freight for respondent was by and through these permits. Respondent required each truck to carry a sign reading, 'Leased To Grain Belt Transportation Company.' All road mileage, transportation tax, public liability, property and cargo insurance costs were paid by respondent. Claimant carried only a $250 deductible policy of insurance on his truck.

Respondent did not deduct any withholding tax or social security from moneys which it paid direct to a driver. Money was advanced to each driver, including claimant, by respondent before a trip started. A driver could refuse a load but he could not pick or choose what load he would take.

On July 25, 1955, the day in question, respondent had a shipment of oil field pipe to be delivered from Kansas City, Kansas, to Hays, Kansas. Claimant, with his trucktractor, went to respondent's yard, picked up an empty trailer, and proceeded to the shipper's place of business, where the pipe was loaded. Thereafter claimant returned to respondent's yard where respondent inspected the equipment and claimant, after receiving his clearance papers, checked out. This was the regular routine procedure before any load was permitted to start out on the highway. Delivery of the oil field pipe was to be made the next morning in Hays, Kansas. At about 6:00 p. m. on July 25, 1955, while claimant was traveling on highway No. 10 near Sunflower, Kansas, the motor of his truck became overheated and he pulled off the road to allow it to cool. He touched the brakes and they locked. This caused the load of pipe to come forward through the cab of the tractor and claimant's back was injured, for which injury compensation is sought. There is no dispute about accidental injury, filing of notice, or making written claim.

It is an undisputed fact that a truck owner in return for hauling a load of freight received 55% of the gross payment made to respondent by the shipper or consignee.

The trial court determined the relationship of employer and workman existed under G.S.1949, Chap. 44, Art. 5, and G.S.1955 Supp. Chap. 44, Art. 5; it determined the accidental injury suffered by claimant was compensable thereunder; and in conformance therewith, it computed the compensation of claimant for his services to respondent on 20% of the gross revenue. The overall award was for 145 weeks at the rate of...