Barsh Truck Line, Inc. v. Jerry Lipps, Inc.
| Decision Date | 16 January 1968 |
| Docket Number | No. 32765,32765 |
| Parties | BARSH TRUCK LINE, INC., a Corporation, Plaintiff-Appellant, v. JERRY LIPPS, INC., a Corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Oliver, Oliver & Jones, A. J. Seier, Cape Girardeau, for plaintiff-appellant.
Limbaugh, Limbaugh & Russell, Cape Girardeau, for defendant-respondent.
This is an action whereby plaintiff sought to recover indemnity from four defendants. The trial court sustained a motion to dismiss the plaintiff's petition and plaintiff has appealed.
It is conceded at this point that the only defendant against which the plaintiff seeks to state a case is Jerry Lipps, Inc. The plaintiff, Barsh Truck Line, alleged that it leased a tractor-trailer from Jerry Lipps, Inc. for the purpose of transporting canned citrus products from Lake Wales, Florida, to Paragould, Arkansas. The petition alleged that the truck was operated by Louis Lavigne, an employee of Jerry Lipps, Inc., and that the cargo was lost in a single vehicle accident caused by the negligence of the driver. Barsh Truck Line, plaintiff-lessee, was compelled to pay Donald Duck Juices Company, the shipper, the sum of $3,874.87 for the loss and damage to the cargo. By this action the plaintiff Barsh Truck Line seeks indemnity from Jerry Lipps, Inc. by reason of the terms of the lease entered into. The lease was attached to and made a part of the petition.
A motion to dismiss the petition was filed setting forth as its grounds that the petition and the lease show upon their face that the defendant is not liable. The court sustained the motion to dismiss and as stated, it is from the dismissal the plaintiff prosecutes this appeal.
The facts pleaded and admitted are that the lease attached to the petition was executed by the Barsh Truck Line, plaintiff, as lessee and Jerry Lipps, Inc., defendant, as lessor. It provided that Jerry Lipps, Inc. would lease to Barsh Truck Line, Inc. a tractor-trailer for the purpose of transporting canned citrus products from Lake Wales, Florida, on May 5, 1964, for delivery at Paragould, Arkansas, not later than May 14, 1964. It contained the following relevant provisions:
'Lessor hereby agrees to maintain his equipment in a good and efficient manner and observe all safety rules and other requirements of the Interstate Commerce Commission and all other regulatory bodies having jurisdiction.
'Lessor hereby agrees that he will personally be responsible for any damage to his equipment, regardless of cost, and further agrees to carry any fire, theft or collision insurance as he deems necessary on his own equipment and to hold harmless the Lessee for any damage to his equipment regardless of cost or nature.
The lease was...
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...when many others must be considered in ascertaining the determining factor, which is the right of control. Barsh Truck Line, Inc. v. Jerry Lipps, Inc., Mo.App., 424 S.W.2d 81, 83. Comment e on Subsec. (1), § 220, 1 Restatement (Second) of Agency, pp. 487--488 (see also Comment c on Subsec. ......
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