Hall v. Gallagher

• Decision Date: 02 October 1956
• Citation: 50 Del. 148,125 A.2d 507
• Court: Supreme Court of Delaware
• Parties: , 50 Del. 148 James HALL, Carl Pinckney, Milton Hall and John Jackson, Appellants, v. E. A. GALLAGHER, individually and trading as E. A. Gallagher & Sons, Appellee.

Page 507

125 A.2d 507

11 Terry 148, 50 Del. 148

James HALL, Carl Pinckney, Milton Hall and John Jackson, Appellants, v. E. A. GALLAGHER, individually and trading as E. A. Gallagher & Sons, Appellee.

Supreme Court of Delaware.

Oct. 2, 1956.

Rehearing Denied Nov. 9, 1956.

William F. Lynch, II (of Morris, James, Hitchens & Williams), Wilmington, for appellants.

William H. Bennethum (of Morford & Bennethum), Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

BRAMHALL, Justice.

Appellee, a common carrier of freight by truck, operating under a certificate issued by the Interstate Commerce Commission (I. C. C.), was engaged in the hauling of steel from Sparrows Point, Maryland, to the plant of the Budd Company in Philadelphia, Pennsylvania. In order to acquire sufficient equipment for this purpose, appellee had leased various tractor -trailers under what was known as a 'one-way-trip lease', that is, a lease covering only the trip from Sparrows Point, Maryland, to Philadelphia, terminating upon the unloading of the steel. Although the drivers of the tractor-trailers made frequent trips for appellee, it was the practice for the owner of the tractor-trailer prior to the beginning of each trip to receive from appellee a lease of the nature above described.

The pertinent provisions of the lease are: (1) that the term thereof should be for a single trip only from Sparrows Point, Maryland to Philadelphia, Pennsylvania; (2) that the lease should terminate upon delivery of the steel at Philadelphia; (3) that the liability of lessee should be specifically limited to the trip provided for in the lease; (4) that the payment of the rental of the tractor-trailer should be computed on the basis of the consideration expressed in the manifest (which counsel agree was on the basis of the tonnage and the mileage covered in the transportation of the load); (5) that for the duration of the lease the lessee would assign and affix to the tractor-trailer its I. C. C. placard, to be removed upon the arrival of the tractor-trailer at its destination and the delivery of the load.

Prior to the accident the tractor-trailer was leased by appellee on a number of consecutive days in hauling steel from Sparrows Point to Philadelphia. On a few occasions, appellee also leased the tractor-trailer for a return trip. On each trip--including those for which the tractor-trailer was hired for a return trip--a one-way-trip lease was executed by appellee covering that trip only. It was indicated on the I. C. C. placard referred to in the lease that the tractor-trailer was being operated by appellee. The driver frequently neglected to remove the placard upon the delivery of the steel.

On January 22, 1953, appellants were injured in an accident near Naaman's, Delaware, as a result of a collision between an automobile in which they were occupants and a tractor-trailer which had been leased by appellee under the terms of the lease above described to cover the trip from Sparrows Point, Maryland, to Philadelphia, Pennsylvania. At the time of the accident the driver of the tractor-trailer had delivered and unloaded the steel at the Budd plant in Philadelphia and was returning empty except for some wooden forms which had been used in shoring the steel in place.

At some time, either during the trip to Philadelphia or on the return therefrom, the driver of the tractor-trailer telephoned the dispatcher of appellee, inquiring as to whether or not there would be another load for him upon his return. The driver was informed that he should return to Sparrows Point, where there would be a load waiting for him.

Appellee filed a motion to dismiss on the ground that at the time of the accident the tractor-trailer was not owned by and was not being operated for, on behalf of or at the request of appellee. It was further alleged therein that the driver of the tractor-trailer was not in the employ of appellee. Affidavits were filed by both appellants and appellee. Under Rule 12(c), Del.C.Ann., the motion was treated as a motion for summary judgment under Rule 56. The lower court granted appellee's motion, whereupon appellants appealed.

The question for determination is the responsibility of a common-carrier of freight by motor vehicle, operating under a certificate from the I. C. C., for the negligence of the driver of a tractor-trailer leased by the common-carrier under a one-way-trip lease, where at the time of the accident the driver had delivered his load and was returning for another load.

Appellants assert that sufficient facts are presented from which inferences may be drawn permitting a jury to hold appellee responsible under the doctrine of respondeat superior or under the general provisions of agency. Appellants further contend that, assuming that this court should decide that the owner of the tractor-trailer is in fact an independent contractor, nevertheless, sufficient facts are presented from which a jury might reasonably infer that appellee is responsible for the accident on the theory that the duty of appellee as a common carrier was non-delegable.

In making its first point appellants rely upon certain facts which, taken together, they say, make appellee responsible. They are: the fact that trips were made from Sparrows Point to Philadelphia, under the same arrangement, for at least 16 or 17 days prior to the accident; the presence of appellee's name and I. C. C. number upon the side of the tractor-trailer at the time of the accident; the retention by the driver of the wooden racks used to shore up the steel while being hauled; the telephone call by the driver to appellee's dispatcher; the procedure set up by appellee of having the driver accept receipts for...