Deaton Truck Lines, Inc. v. Acker

• Decision Date: 14 November 1957
• Docket Number: 6 Div. 965
• Parties: DEATON TRUCK LINE, Inc., v. Evelyn ACKER.
• Court: Alabama Supreme Court

Page 429

98 So.2d 429

266 Ala. 611

DEATON TRUCK LINE, Inc., v. Evelyn ACKER.

6 Div. 965.

Supreme Court of Alabama.

Nov. 14, 1957.

London & Yancey, Geo. W. Yancey, and Jas. E. Clark, Birmingham, for appellant.

Lipscomb, Brobston, Jones & Brobston, and W. E. Brobston, Bessemer, for appellee. The agreement for lease or rental by appellant of Acker's truck-trailer is as follows:

'This lease agreement is made this 24 day of June, 1949, between E. O. Acker, hereinafter called the Owner, and Deaton Truck Line, Inc., hereinafter called Company, as follows:

'1. Owner hereby rents, leases and delivers to the Company the following described motor vehicle:

'No. 116-1945 Model White, Motor No. 358715, Ala. Tag 1H2-8757 and 1941 Model Carter, Flat Tandem 34' Trailer, Ala. Tag 1T2-1155

'Upon the terms and conditions set out below:

'2. During the term of the lease the said vehicle shall be used for the transportation of freight, both intrastate and interstate, under the authority of the Company and for no other person, firm or corporation. During the time the said vehicle is so being used in the service of the Company for the transportation of freight, the Company shall have the exclusive use and control thereof.

'3. This lease may be terminated by either party after giving to the other thirty days written notice of termination, and shall continue for one year from date hereof and from year to year thereafter until so terminated.

'4. The Company agrees to pay as rent to the Owner for the use of the said vehicle, the following precentages of gross revenue derived by the Company from the operation of said vehicle, subject to the provisions of other paragraphs hereof:

'70% on all freight classified in the National Motor Freight Classification as 6th Class or higher;

'75% on all freight classified in the National Motor Freight Classification as 7th Class or lower;

'5. All identification plates, both State and Federal (but not including license tags) shall be bought in the name of the Company, and paid for by the Company, and shall be displayed on this vehicle as long as this lease remains in effect. Upon the termination of this lease, the said Plates shall remain the property of the Company and may be removed by it, together with all signs which may be painted on said vehicle. Owner has, or will, deposit $150 with the Company to guarantee performance of all provisions of this lease, and agree that any sums expended by the Company to carry out this paragraph hereof, and to reimburse the Company for any expenses caused by the Owner violating any paragraph hereof, shall be deducted from the said deposit; the remainder, thereof, if any, shall be refunded to the Owner not less than 60 days after termination of this Lease.

'6. Owner agrees to keep the said vehicle in good mechanical condition and repair at his own expense for the duration of this lease, and further agrees to pay all costs of operating same, including without restricting the generality of the above, claims for Cargo shortages, gasoline, oil, tires, parts, repairs, greasing, tarpaulins, fines for any cause, driver's salary, and permit fees charged by any State for the transportation of property on the said vehicle in such State. For the payment of all his obligations set out in this lease, owner waives all rights of exemption under the Constitution and Laws of the State of Alabama or any other State, and agrees to pay a reasonable Attorney's Fee, if the employment of an Attorney is necessary to collect same.

'7. The Company will pay all mileage taxes imposed by any State for the operation of said vehicle when operated in accordance with provisions of this lease; and will pay all Cargo, Property Damage and Public Liability Insurance premiums on the said vehicle when used in accordance with the provisions of this lease. The Owner, in addition to the expenses mentioned in Paragraph 6 above, will pay for State License Tags on said vehicle, and Pay Collision, Fire & Theft, Insurance premiums on the said vehicle, if any such insurance is carried. In the event that the Owner is indebted to the Company for any reason under the terms of this lease, Owner will purchase on demand of Company, and at his own expense, Fire, Theft & Collision Insurance on the above described vehicle, in an amount not less than his indebtedness to the Company, and such policy shall be payable to the Company and the Owner as their respective interests may appear. Insurance in excess of standard coverage, which may be required from time to time, if any, shall also be paid by the Owner. All Insurance Policies referred to above must be written by Insurance Companies acceptable to the Company.

'8. In the event the driver of said vehicle violates any rule or regulation of the Interstate Commerce Commission or any Federal, State, or Municipal Law or Ordinance, and as a result of such violation the Company is fined in any Court, Owner will reimburse the Company for such fine and all expenses in connection therewith. Owner will also reimburse the Company for any and all freight charges which the Driver of the said vehicle may collect and fail to remit to the Company.

'9. On the date of the execution of this lease, the owner is indebted to the Company in the amount of _____ dollars; and both parties contemplate that owner may become indebted to the Company in an additional amount in the future during the period of this lease or any renewal thereof. In order to secure the payment of such indebtedness, the undersigned owner does hereby transfer, sell, assign and convey to Deaton Truck Line, Inc., its successors and assigns, the above described vehicles; to have and to hold said property unto the said Company its successors and assigns; upon the condition, however, that if the owner pays the said indebtedness and does and performs all acts and things herein agreed to be done, this conveyance shall be null and void; but should default be made in the payment of said indebtedness, or should the Owner fail to comply with any one or more of the agreements made herein, then this mortgage shall be subject to foreclosure, as provided by law, in the case of past due mortgages; and the mortgagee is hereby authorized to take possession of the property hereby conveyed, or any part thereof, wherever the same may be found, without notice to the mortgagor, or to any one else and the mortgagee is authorized, after giving one week's notice by publication in some newspaper published in said County, of the time, place and terms of sale to sell said property in front of the Courthouse door of said County, or at any other place deemed by the mortgagee appropriate and reasonably conducive to an advantageous sale; such sale to be at public outcry to the highest bidder for cash. The proceeds of the sale shall be applied first, to the expense of advertising, selling and delivering, including a reasonable Attorney's fee, second, to the payment of the indebtedness hereby secured with interest thereon, including any amounts which may have been expended by the mortgagee for taxes, insurance, or in satisfaction of any prior encumbrance, and third, the balance, if any, to be turned over to the mortgagor. It is agreed that the mortgagee, its successors or assigns, may bid at any such sale and purchase the property if the highest bidder therefor.

'Received from Deaton Truck Line, Inc., List of Claim Adjusters, Accident Report Cards, Driver's Witness Cards, 'notice' advising no one other than an employee of this Company may ride in this vehicle, and Bulletin of 6/11/49 concerning riders, and List of Commodities which Deaton Truck Line, Inc., may handle, and by signature below, receipt is hereby acknowledged.

'Witness our hands and seals at Birmingham, Alabama, this the 24 day of June, 1949.

'/s/ E. O. Acker (O...