Opinion
December 20, 1961
Appeal by alleged employer Stevens Truck Lines and its insurance carrier from a decision which held that decedent was in the general employ of respondent De Carolis and the special employ of appellant Stevens and thereupon charged an award of death benefits to both employers and their respective carriers. Stevens, the holder of an Interstate Commerce Commission permit, leased the vehicles used by it from various owners, including De Carolis. Decedent, a truck driver concededly in De Carolis' general employ, called Stevens to solicit haulage and was assigned a load to transport in De Carolis' truck from New York to Pennsylvania. He sustained fatal injuries in a highway accident while returning with a load from another Stevens customer. Stevens had directed decedent to call the latter customer — "a regular account" — and "tell them that you are Stevens Truck Lines" and inquire as to any merchandise for shipment. Under the lease agreement, Stevens had "exclusive possession, control, and use" of the leased equipment and hence possessed and (as has been indicated) exercised a considerable measure of control over decedent's movements. The finding of special employment thus rests upon substantial evidence and, indeed, appellants seem not to dispute the indicia of that relationship which have been mentioned and the others appearing in the record but rest their case largely on their proof of a supposed practice or usage in the trucking business whereby workmen's compensation insurance coverage is said to be customarily effected by one of the parties for the benefit of both, so as to avoid the cost of dual coverage such as exists in this case. Thus, according to the testimony of Stevens' president, it is customary for the lessor either to provide coverage or to be charged therefor by deduction of the premium from the contract price. Neither a usage with respect to coverage nor a specific agreement therefor would be controlling upon the issue of employment. Indeed, in Matter of Williams v. Solomon ( 13 A.D.2d 159), upon which appellants mistakenly rely, the lessee actually did furnish coverage but we held (p. 161) that its act in so doing would not "constitute a conclusive admission or necessarily be given evidentiary effect of greater weight than that accorded other factors." We find no merit in appellants' additional contention that the proof to which we have alluded requires that the policy issued by respondent carrier be reformed so as to include appellant employer within the coverage. Decision and award unanimously affirmed, with costs to respondents employer and carrier. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.