Balfour v. Dohrn Transfer Co.

• Decision Date: 28 February 1946
• Docket Number: Gen. No. 9481.
• Parties: BALFOUR v. DOHRN TRANSFER CO.
• Court: United States Appellate Court of Illinois

328 Ill.App. 163

65 N.E.2d 624

BALFOUR

v.DOHRN TRANSFER CO.

Gen. No. 9481.

Appellate Court of Illinois, Third District.

Feb. 28, 1946.

Appeal from Circuit Court, Adams County; Fred G. Wolfe, Judge.

Action by Joe Balfour against Dohrn Transfer Company, a corporation, to recover rent under a lease agreement for use of a truck and trailer and for damages to truck and trailer caused by an accident wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.

Affirmed upon remittitur.Matthew Finlay Carrott, of Quincy (David Axelrod and Carl L. Steiner, both of Chicago, of counsel), for appellant.

Wilson & Schmiedeskamp, of Quincy, for appellee.

HAYES, Presiding Justice.

This is an action by Joe Balfour, the owner of a tractor-trailer combination, against Dohrn Transfer Company, the lessee of that combination, brought in the Circuit Court of Adams County. The complaint contained two counts, one for $324.95 due Balfour under certain lease agreements for the use of his truck and trailer, the other for damages to the truck and trailer caused by an accident when the truck and trailer were under lease to the Transfer Company. The Transfer Company, in its answer, admitted that it owed the sum claimed under Count One, denied the allegations of Count Two and filed a counterclaim for damages to merchandise being transported in the trailer at the time of the accident. The case was tried before a jury and a verdict in favor of plaintiff for $1,579.85 was returned. Defendant has appealed to this court.

Balfour, the owner of the truck and trailer, employed a driver who was operating the truck at the time of the accident. The lease agreement pursuant to which the trip was made was entered into with the Transfer Company by the driver and on behalf of Balfour, and provided for the transportation of merchandise to various consignees in Galesburg, Ill. The Transfer Company, as its name implies, was engaged in transporting personal property in its own vehicles and in vehicles under lease as driver of the truck was the employee of the Transfer Company on this particular the Transfer Company one this particular trip and that it is liable for damages caused his truck and trailer because of the driver's negligence. The Transfer Company argues that the driver was Balfour's employee and there is evidence in the record supporting both theories of the case.

It should be noted first that the Transfer Company apparently employed two types of leases. The one upon which Count One of the complaint is based provided that ‘the equipment herein leased shall be in the exclusive possession and control of the Lessee, and that the driver of the equipment shall be an employee of the Lessee.’ The lease which covered the trip during which the accident took place merely provided ‘that the equipment herein leased shall be in the exclusive possession and control of the Lessee.’ The defendant also proved that Balfour furnished at his own expense all necessary oil, gasoline and tires; he paid the driver's wages out of the contract price and in addition paid for his meals and hotel room. The record discloses on the other hand that the Transfer Company paid the driver by its own check which was deducted from Balfour's rental; that it paid social security on the driver as its employee, withheld income taxes from his wages and protected him with workmen's compensation insurance.

...