Beers v. Indianapolis Forwarding Co.

• Decision Date: 14 October 1963
• Docket Number: 48925,Gen. Nos. 48924
• Citation: 193 N.E.2d 473,43 Ill.App.2d 303
• Parties: William BEERS, Plaintiff-Appellee, v. INDIANAPOLIS FORWARDING COMPANY, a corporation, and Harwood Trucking Inc., a corporation, Defendants-Appellants. William O. BEERS, Administrator of the Estate of Mary E. Beers, Deceased, Plaintiff-Appellee, v. INDIANAPOLIS FORWARDING COMPANY, a corporation, and Harwood Trucking Inc., a corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 473

193 N.E.2d 473

43 Ill.App.2d 303

William BEERS, Plaintiff-Appellee, v. INDIANAPOLIS FORWARDING COMPANY, a corporation, and Harwood

Trucking Inc., a corporation, Defendants-Appellants.

William O. BEERS, Administrator of the Estate of Mary E.

Beers, Deceased, Plaintiff-Appellee, v. INDIANAPOLIS FORWARDING COMPANY, a corporation, and Harwood

Trucking Inc., a corporation, Defendants-Appellants.

Gen. Nos. 48924, 48925.

Appellate Court of Illinois, First District, First Division.

Oct. 14, 1963.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, for plaintiff-appellee, John M. Moelmann, Richard G. French, Thomas J. Weithers, Chicago, of counsel.

Heineke, Conklin & Schrader, Chicago, for Indianapolis Forwarding Co.

Vogel & Vogel, Chicago, for Harwood Trucking Inc.

BURMAN, Justice.

The two actions before us were tried as consolidated cases and have also been consolidated for purposes of appeal. The first case was brought by plaintiff, William Beers, to recover damages for loss of consortium, and medical and hospital expenses he incurred as a result of injuries to his wife in an Indiana highway collision on March 20, 1952, and for burial expenses from her subsequent death in Illinois on July 20, 1953. The second case was brought in plaintiff's capacity as the administrator of his wife's estate to recover damages for her wrongful death. There are two defendants, namely, Indianapolis Forwarding Company, [Indianapolis], and Harwood Trucking Inc., [Harwood]. The jury found both defendants negligent by its verdict awarding $19,000 to plaintiff, individually, and $15,000 in the wrongful death action and both defendants appeal from the judgments entered upon the verdicts.

Sidney R. Perryman owned and operated a restaurant in Louisville, Kentucky, and also owned six truck-tractors and trailers which he leased together with his drivers to various trucking companies. On March 19, 1952, Perryman entered into a written lease agreement separately with defendants Indianapolis and Harwood in which agreement each defendant leased from Perryman a tractor trailer unit to ship their merchandise from Louisville to Chicago. Perryman was paid by the load ton. As provided in the respective leases the driver who hauled the Indianapolis merchandise was Marvin Resinger and the Harwood driver was Robert L. Boling. Both drivers were employees of Perryman who paid them their salaries on a mileage basis and who also supplied the gas and oil for the trips. In the course of their respective trips Boling met Resinger at Reno's Truck Stop in Schneider, Indiana. At that time Boling told Resinger he was having trouble with the starter on the tractor he was driving. They decided to switch trailers because at Boling's destination there would be seven or eight trucks in front of him and he would have to wait all day and leave the tractor running because of the faulty starter. As a result of this exchange, Boling continued to use his tractor, but was hauling the Indianapolis merchandise to its destination instead of hauling Harwood's merchandise.

When the drivers switched trailers, they exchanged bills of lading and permits which were issued to Indianapolis and Harwood respectively. Defendants Harwood and Indianapolis were common carriers by motor truck, operating pursuant to certificates of public convenience and necessity issued by Interstate Commerce Commission. Both also were certificated for the purposes of intrastate motor truck carriage by the State of Indiana. Perryman does not obtain the bills of lading and operates under other company's permits.

As Boling was driving toward the Indianapolis Forwarding Company destination, approximately one mile north of Schneider, Indiana, on U. S. Highway 41, the collision which resulted in this cause of action occurred. Boling was driving over a dip between a concrete bridge and the highway when the trailer and tractor separated. The tractor went to the left side of the highway, crossed over the center line, and struck the automobile in which plaintiff's wife was riding, inflicting serious injuries which caused her death 16 months later.

Defendant Harwood contends that the plaintiffs failed to prove that Boling was their agent and therefore the court erred in denying its motion for directed verdict. Harwood argues that at the time of the accident Boling was not operating under the Harwood trip lease, not operating under Harwood's franchise, not hauling Harwood merchandise, not headed for a Harwood destination and therefore they were not liable on any basis and a judgment notwithstanding the verdict should be entered in its favor.

Defendant Indianapolis contends that under the lease agreement between Perryman and themselves, Resinger was their agent and servant and that as a matter of law Boling was a volunteer whose employment they did not accept and was not their agent and servant and therefore the court erred in denying its motion for directed verdicts. It is further contended by Indianapolis that burial expenses were erroneously allowed.

Since the occurrence in question took place in the State of Indiana, that law governs as to the substantive rights and liabilities of the parties. 34 I.L.P. Torts § 6; 16 I.L.P. Death § 15; see also, generally, 16 Am.Jur. Death § 390.

The basic rule of law upon which the liability of each defendant is predicated is stated in Section 428 of the Restatement of the Law of Tort:

'An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.'

Negligence in the operation of the truck-trailer and plaintiffs due care are not disputed. The liability of Perryman is not in issue before us. The sole question presented is whether Harwood or Indianapolis or both are responsible for plaintiff's injuries. The Supreme Court of Indiana in the case of Bates Motor Transport Lines v. Mayer, 213 Ind. 664, 14 N.E.2d 91, wherein appellant also contended that there was no evidence that the driver and operator of the truck was a servant, agent or employee of appellant made the following statement, which we think is applicable here:

'* * * the appellant was the common carrier, licensed under the laws of Indiana. * * * There is no question as to the ownership of the truck. * * * [t]hat is not a question in the case. The question is: Whose business was being transacted? Who was the common carrier? Who held the permit from the Public Service Commission of Indiana? * * * [t]he appellant furnished the permit to transport interstate shipments as a common carrier, and furnished the freight to be transported * * *. [t]he appellant was the responsible licensed party to use the highways of the state, in an enterprise necessarily attended by some danger. It cannot avoid liability for injury to third parties by contracting with an irresponsible party. Such contract would be a fraud upon the public and state. Lake Shore & Michigan Southern Railway Co. v. Foster, 1885, 104 Ind. 293, 4 N.E. 20, 54 Am.Rep. 319.'

The Circuit Court of Appeals for the Third Circuit in Venuto v. Robinson, 118 F.2d 679, reviewed a judgment upon a verdict wherein the appellant contended there was insufficient evidence to establish that the owner of a truck who was hauling a load of merchandise for a common carrier pursuant to its permit was its servant at the time of the accident and that the trial court erred in denying its motion for directed verdicts had this to say:

'Inter-state motor carriage is now regulated by elaborate rules and regulations set out in the Motor Carrier Act of 1935 and the regulations thereunder. The carriage of freight in high powered motor vehicles on public highways is certainly business attended with very considerable risk. The rule stated has been applied in cases against railroads to hold a lessor railroad liable even where the relationship has been lessor and lessee without even general control or direction by the lessor over the lessee. See annotation, 28 A.L.R. 122, and following. The application to one employed by a common carrier by motor truck upon the public highways is an even clearer case. See Duncan v. Evans, 1938, 134 Ohio St. 486, 17 N.E.2d 913, affirming Duncan v. Evans, 1937, 60 Ohio App. 265, 20 N.E.2d 729; Bates Motor Transp. Lines, Inc. v. Mayer, 1938, 213 Ind. 664, 14 N.E.2d 91.'

Defendant Indianapolis contends that the trial court erroneously instructed the jury that if they should find any negligence on the part of the operator of the tractor-trailer unit, that both Indianapolis and Harwood were jointly and severally responsible in law for such negligence. Indianapolis insists that this issue should have been submitted to the jury.

The facts are undisputed that Indianapolis had leased a trailer-truck from Perryman to ship its merchandise exclusively to a terminal designated by Indianapolis. The lease provided that, '* * * during the term of this lease, the foregoing equipment shall be subject to direction and control of the Indianapolis Forwarding Co., and shall be operated only by the lessor or his representative while in the employ of Indianapolis Forwarding Co.' It is clear from the evidence that at the time of the accident the trailer involved was leased to Indianapolis and contained its merchandise which was being transported on the highways pursuant to a bill of lading and an Indianapolis permit secured by it. In addition the...