Pritchard v. G & a Truck Lines

Sharpe, J. This is an appeal from the department of labor and industry. Plaintiffs are the dependents of Walter H. Prit-chard who was fatally injured while driving a truck owned by Glenn McNamara, as owner of G & A Truck Lines. It is conceded that plaintiffs are entitled to compensation as the result of the death of Walter H. Pritchard. The issue in this ease is whether the compensation should be paid by G & A Truck Lines and its insurer or the Midwest Transfer Company and its insurer. ■ Walter H. Pritchard was hired by the G & A Truck Lines on or about November 1,1942. He was paid wages as a truck driver at the rate of $9 per trip. On December 29, 1942, he was killed when the equipment he was driving left the highway a few miles west of South Bend, Indiana. At the time' of the accident, he was driving a truck owned by the G & A Truck Lines, but hauling freight for the Midwest Transfer Company. It appears that on August 1, 1942, the G & A Trucking Company, also known as G ,& A Truck Lines, entered into a written agreement with the Midwest Transfer Company concerning the use under lease of the equipment of the G & A Trucking Company by the Midwest Transfer Company. That part of the lease - pertinent to the issue involved reads as follows: “It is hereby mutually agreed that the Midwest Transfer Company, when it uses the trucks of the G & A Trucking Company, shall have full and complete supervision over such trucks, and will retain the privilege to hire or fire the drivers for these vehicles, and that these drivers will operate under im *353 structions direct from the dispatchers and supervisors of the Midwest Transfer Company.” The department of labor and industry held that deceased was a regular employee of Glenn McNamara, doing business as G So A Truck Lines; that Glenn McNamara had the right to and did exercise control over decedent on the trip to Chicago and return; and entered an award against Glenn McNamara. Defendants McNamara and Massachusetts Bonding Company appeal and urge that the agreement of August 1, 1942, governed the relationship between the Midwest Transfer Company and the G & A Truck Lines; that under this agreement the Midwest Transfer Company had the right to hire and discharge drivers as well as complete supervision over the truck; and that at the time of the fatal accident, the right to control being in the Midwest Transfer Company, deceased was in the employ of the Midwest Transfer Company. It is urged by the Midwest Transfer Company that at the time the fatal accident occurred, deceased was not operating under the • agreement of August 1, 1942; that deceased was not engaged in an operation different from his usual occupation; that no particular instructions were needed to be given to him by the Midwest Transfer Company in order to successfully complete the trip; and that deceased was at all times under the direction and control of G & A Truck Lines. Of importance is the determination of whether deceased made the trip by virtue of the agreement of August 1, 1942, as claimed by G & A Truck Lines, or under a trip lease, as claimed by the Midwest Transfer Company. It appears that the so-called trip lease was the contract by virtue of which the trip from Maywood, Illinois, back into- Michigan was made. There is evidence that the trip lease *354 agreement was in writing. It was not produced at the hearing, hence there is no evidence of its contents. The department found as a fact that the trip was not made by virtue of the agreement of August 1, 1942, but did not make any finding that the trip was made under the trip lease agreement. There is competent evidence to sustain the finding of the department that the trip was not made by virtue of the agreement of August 1, 1942. Glenn McNamara testified: “Q. Was this cargo being hauled for the Michigan Transfer Company? “A. It was being hauled under trip lease, yes. * > * * :‘Q. Is there a trip lease covering this trip? “A. Tes. “Q.- And it was a subsequent agreement, subsequent to that agreement and in writing? “A. In writing. “Q. It was the contract by virtue of which that trip was made? “A. That is right.” In view of the fact that the trip was not made by virtue of the written agreement of August 1, 1942, it becomes necessary to explore other sources of information to determine who was the employer of deceased. • In Rockwell v. Railway Co., 253 Mich. 144, we said: “It is a well-settled rule of law that when one person hires or lends his servant to another for some particular work and resigns full control over him while performing that work, he ceases for the time to be the servant of the original master and becomes the servant of the party to whom he is hired orient. In determining whose servant he was the *355 test is, who had the right to control him. In 18 B.. O. L. p. 784, § 244, it is stated: “ ‘But to avoid liability the original master must resign full control of the servant for the time being. It is not sufficient'that the servant is partially under the control of another.’ * * * “And in W. S. Quinby Co. v. Estey, 221 Mass. 56 (108 N. E. 908), the court said: “ ‘If the servant remains subject to the general orders of the man who hires and pays him, he is stiil his .servant, although specific directions may be given him by another person from time to time as to the details of the work and the manner of doing it.’ ” See, also, Allen v. Kendall Hardware Mill Supply Co., 305 Mich. 163. The.record shows that deceased was hired and paid by G & A Truck Lines. He was operating-equipment owned by G & A Truck Lines. On the question of control over deceased, Glenn McNamara testified: “Q. * * * Did you give orders for Mr. Pritchard to go on this trip? “A. Tes, sir. “ Q. Tell him when to go, how to go, where to go and when to return? “A. Yes. “ Q. * * * When Mr. Pritchard was on this trip was he driving your equipment? “A. Yes, sir. “Q. Was that equipment during .that trip under your direction and your control? “A.' Yes, sir. * * * “Q. I want to ask you if you directed Mr. Prit-chard at Chicago where to take that load back? “A. I told him what he should do for a return load. * * * “Q. You told him to go to Chicago and find out where Midwest had a load and to bring- it in? *356 “A. Yes. “Q. And the control exercised in this particular case was no different than the case when your driver brought your own load back, except that they picked up the load at Midwest Transfer and found out where it was going to go? “A. That is right.” It is clear from the above testimony that G & A did not resign full control over deceased on the trip to and from Chicago. It retained a general control over deceased at all times. He was subject to its directions at all times. Deceased was not such a loaned servant as is'mentioned in the Allen Case, supra. There is competent evidence to sustain the determination of the department that deceased was in the employ of G & A Truck Lines. It is urged that the department was in error in excluding the following exhibit offered in evidence by the G & A Truck Lines. “Ruling No. 4 August 19, 1936 (08.101) “INTERSTATE COMMERCE COMMISSION Bureau of Motor Carriers “The following is an administrative ruling of the bureau of motor carriers, made in response to questions propounded by the public, indicating what is deemed by the bureau to be the correct application and interpretation of the act. Rulings of this kind are tentative and provisional and are made in the absence of authoritative decisions upon the subject by the commission; “Question: “Under what circumstances may a carrier add to its equipment, by leasing a vehicle and obtaining the service of its owner-driver? “Answer:- “The lease or other arrangement by which the equipment of an authorized operator is *357 augmented, must be of such a character that the possession and control of the vehicle is, for the period of the lease, entirely vested in the authorized operator in such way as to be good against all the world, including the lessor; that the operation thereof must be conducted under the supervision and control of such carrier; and that the vehicle must be operated by persons who are employees of the authorized operator, that is to say, who stand in the relation of servant to him. as master.” It is to be noted that the exhibit is an administrative ruling of the bureau of motor carriers under date of August 19, 1936. It is a tentative ruling of the bureau and not a ruling of the interstate commerce commission. It was not error to deny its admission as evidence. The award is affirmed, with costs to Midwest Transfer Company as against G & A Truck Lines. Starr, C. J., and Wiest, Butzel, Bushnell, and Reid, JJ., concurred with Sharpe, J.