8 A.D.2d 502, Leotta v. Plessinger

Citation8 A.D.2d 502, 188 N.Y.S.2d 737
Party NameLeotta v. Plessinger
Case DateJuly 09, 1959
CourtNew York Supreme Court Appelate Division, Fourth Department

Page 502

8 A.D.2d 502

188 N.Y.S.2d 737

Mary A. LEOTTA, individually and as Admx., etc. of Alfred R. Leotta, deceased, Respondent,

v.

Joseph E. PLESSINGER, Defendant,

Harvey B. Hole, Respondent-Appellant,

and

Riggs Dairy Express, Inc., Appellant.

Ellen AXTELL, Respondent

v.

Joseph E. PLESSINGER, Defendant,

Harvey B. Hole, Respondent-Appellant,

and

Riggs Dairy Express, Inc., Appellant.

Vida AXTELL, Respondent,

v.

Joseph E. PLESSINGER, Defendant,

Harvey B. Hole, Respondent-Appellant,

and

Riggs Dairy Express, Inc., Appellant.

Supreme Court of New York, Fourth Department

July 9, 1959.

Page 503

[188 N.Y.S.2d 738] John B. Mowry, Mexico, N. Y., Domenick L. Gabrielli, Bath, of counsel, for plaintiff-respondent, Mary A. Leotta.

Charles P. Knapp, Knapp & Knapp, Bath, for plaintiffs-respondents, Ellen Axtell and Vida Axtell.

Gilbert R. Hughes, Ferris, Hughes, Dorrance & Groben, Utica, for defendant-appellant, Riggs Dairy Express, Inc.

Robert M. Wightman, Wightman and Wightman, Bath, for defendant-appellant, Harvey B. Hole.

Before KIMBALL, J. P., and WILLIAMS, BASTOW, GOLDMAN and HALPERN, JJ.

GOLDMAN, Justice.

Verdicts were rendered against the defendants Harvey B. Hole and Riggs Dairy Express, Inc. in amounts ranging from $5,000 to $125,000. Thereafter, pursuant to § 264 of the Civil Practice Act a motion by defendant Hole was granted at Trial Term for judgment over against Riggs Dairy Express, Inc. In addition judgment in equal amounts were directed against the defaulting defendant, Joseph E. Plessinger, operator of the tractor owned by Hole and found by the jury to have been operated by Plessinger at the time of the accident in the business of Riggs Dairy Express, Inc., to which reference will be made as 'Riggs'.

[188 N.Y.S.2d 739] Riggs contends on this appeal that it was error to submit to the jury the issue whether at the time of the accident on November 22, 1956, under the terms of the leasing agreement to which we shall refer subsequently, Plessinger was in the course of his employment with defendant Riggs. It is undisputed that Plessinger had been Hole's employee for seven years before the accident.

Hole asserts that Plessinger at the time of the accident was violating his (Hole's) instructions in operating the tractor while disconnected from the trailer. Neither defendant asserts that the evidence is insufficient to support the verdicts as to negligence or freedom from contributory negligence. Likewise, no claim is made that the verdicts are excessive. We find sufficient evidence to support the verdicts against defendant Hole.

There remains then the question presented by the appeal of Riggs. It appears that on November 15, 1956 Riggs leased a

Page 504

tractor and trailer owned by defendant Hole for the purpose of transporting a cargo of butter, an Interstate Commerce Commission regulated commodity, from Chicago, Ill. to Somerville, Mass. The transportation was under the Interstate Commerce Commission rights of defendant Riggs. Mr. Plessinger arrived at his destination, Somerville, Mass., unloaded his cargo and made a report call to Riggs' office to notify Riggs that he had completed the trip. No arrangements had been made by Riggs for a return load and despite efforts by Plessinger to secure a load from any shipper none was available in Somerville. Mr. Plessinger thereupon proceeded to Avoca, New York in search of a return cargo to the midwest. He disconnected the tractor from the trailer and drove to a nearby restaurant. The tractor, on the return trip to Avoca collided with an automobile resulting in the death of Alfred R. Leotta and injuries to his two passengers giving rise to the present litigation. At the time of the accident Plessinger had not removed the decal bearing Riggs' Interstate Commerce Commission permit number, which had been taped to the door of the tractor.

The pertinent provisions of the lease are:

'1. The lessor hereby leases and delivers to the lessee the following described motor vehicle(s) for the duration of a single (outbound) (return) trip, to be used by Lessee in transporting property from Chicago to Somerville, Mass.' [all in printed form except the starting point and destination which are in typewriting].

'2. It is agreed that this agreement shall be in effect from the commencement of the loading of the said motor vehicle(s) to the termination of the unloading. * * *

'4. Lessor represents that said equipment, the owner, driver, and operator thereof, at all times during the term of this lease, comply, and shall comply with the rules and regulations of the [188 N.Y.S.2d 740] Interstate Commerce Commission and all statutes, ordinances, state and federal regulations and laws pertaining to the operation thereof * * *; lessor by these presents, agrees to indemnify and hold lessee harmless of penalties and fines by reason of the violation of any provision thereof.

'5. Lessor shall keep, maintain, and equip said vehicles in good condition and in accordance with all local, state and Federal laws and the rules and regulations of the Interstate Commerce Commission and commissions of the states through which said vehicles are to be operated, at lessor's cost and expense.

'6. Lessor shall furnish driver and pay all expenses of the operation of said vehicles; lessee shall not be liable for any loss

Page 505

or damage to said vehicles, however caused, while in use under the terms of this lease; lessor agrees to indemnify and save harmless lessee for loss or damage to cargo from any and all causes whatsoever, except loss or damage due to acts of God. * * *

'9. Total Lessor Revenue $362.64.' [which was payment computed on the basis of a one-way trip from Chicago, Ill. to Somerville, Mass.]

'10. Driver Must Stop At Following Designated Check Stations.--(12)' [Check station 12 is identified as 'Midway Station (Eastbound)--Penn. Turnpike']. 'Scheduled arrival Nov. 17, 1956.'

'11. Received above load, ICC plates noted and instructions read and acknowledged. Joe Plessinger' [in Plessinger's handwriting]--'Driver's signature'.

Under the plain and unambiguous terms of the contract between the parties this was a one-way lease which had been fully performed five days prior to the time of the accident, at which time Plessinger was not operating for lessee Riggs but was wholly and solely the employee of lessor, Hole.

The fact situation in the case at bar is almost identical with that in Costello v. Smith, 2 Cir., 179 F.2d 715, 16 A.L.R.2d 954. At page 718 of 179 F.2d the U. S. Court of Appeals (Second Circuit) made this pertinent statement:

'The Commission's brief states that 'Private carriers are subject to the Act only with respect to safety of operations, hours of service of employees and standards of equipment, as indicated in Section 204(a)(3)'; * * *. Nor do the present regulations forbid a common carrier such as Johnson from making a one-way lease with an independent contractor such as Withers. In the absence of statutory command or of regulatory action by the Commission, we cannot say that a one-way lease is [188 N.Y.S.2d 741] so far contrary to the policy of the Act that a court should impose liability on the lessee after the lease has ended.'

The Supreme Court of Delaware in a similar holding in Hall v. Gallagher, 50 Del. 148, 125 A.2d 507, considered the same general fact situation involving a one-way lease. In that case, as in the instant appeal, the lessee's Interstate Commerce Commission placard was not removed by the lessor's agent and was upon the tractor-trailer when the accident occurred. At page 509 of 125 A.2d, the Court said:

'The fact that--unknown to appellee and contrary to the terms of the lease--the I. C. C. placard was left on the tractor-trailer after the termination of the lease indicates no intention on the part of appellee to consent to any variation in the terms of the lease.'

Page 506

In Hall v. Gallagher, supra, the plaintiff argued that Gallagher should be held liable under § 428 of the Restatement of the Law of Torts. The Court rejected this contention in the following statement at pages 509, 510 of 125 A.2d:

'This section relates to the responsibility of an individual or corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority involving an unreasonable risk to others. We have held that the lease is valid and that the accident occurred at a time not covered by its terms. The section of Restatement quoted by appellants...

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