Engelke v. Wheatley

• Decision Date: 23 May 1961
• Court: Connecticut Supreme Court
• Parties: Richard ENGELKE et al. v. Eugene WHEATLEY et al. Supreme Court of Errors of Connecticut

Page 402

171 A.2d 402

148 Conn. 398

Richard ENGELKE et al. v. Eugene WHEATLEY et al.

Supreme Court of Errors of Connecticut.

May 23, 1961.

Philip R. Shiff, New Haven, with whom was Alan H. Shiff, New Haven, for appellant (defendant Ellsworth Freight Lines, Inc.).

Paul V. McNamara, Bridgeport, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, ^* JJ.

KING, Associate Justice.

Shortly before eleven o'clock in the evening of April 17, 1956, the named plaintiff was the operator of a convertible automobile in which his wife, the plaintiff Theresa, was a passenger in the front seat and the plaintiffs William and Elise Bodart, husband and wife, were passengers in the rear seat. The automobile had just been driven out of the premises of a drive-in theater, where the plaintiffs had attended a performance. The theater was on the north side of United States route 1, also known as Connecticut Avenue, in Norwalk. For a considerable distance in both directions, route 1, which ran generally east and west, was straight. The total width of the four concrete lanes was fifty feet, and on each outer side was an asphalt shoulder eleven feet wide. The named plaintiff, on leaving the theater premises, made a left turn to go easterly along route 1. He had crossed the middle of the highway and was in the most southerly lane heading east when his car collided with a commercial motor vehicle, hereinafter referred to as a truck, consisting of a tractor and a semitrailer. The truck was being operated westerly on route 1 by the defendant Wheatley. For injuries and losses caused by this collision, the four plaintiffs brought this action. Although the owner of the drive-in theater and Edward Ryan, one if its employees, were also parties defendant, judgment was rendered in their favor and the present appeal does not concern them. Judgment in favor of each of the four plaintiffs was rendered against Wheatley, who owned the tractor, and against the defendant Ellsworth Freight Lines, Inc., hereinafter referred to as Ellsworth, which had hired the semitrailer from its owner, Mercury Freight Lines, Inc., hereinafter referred to as Mercury. From the judgment Ellsworth, alone, has appealed. While there are several grounds of appeal, that stressed, and that which, if sustained, would be dispositive, is that the court was in error in holding that Ellsworth was liable for any negligence of Wheatley in the operation of the truck at the time in question. The corrections and clarifications Ellsworth is entitled in the finding are incorporated in the statement of facts.

The complaint predicated Ellsworth's liability on three grounds. The first was that Wheatley was operating the truck as the servant, agent or employee of Ellsworth. By amendment, an additional allegation was made that Wheatley was driving the truck as an independent contractor for Ellsworth, which was a common carrier operating under a certificate issued by the interstate commerce commission. By a third amendment, still another allegation was made--that Wheatley was operating the truck under an arrangement whereby he and Ellsworth would share the profits from the trip in the course of which the collision occurred.

A carload of eggs had arrived from St. Paul at the Ellsworth freight terminal in Chicago. This delivery had been made by Mercury in its semitrailer. At Chicago, the eggs were left in the trailer, to be carried by Ellsworth to the eastern seaboard. While Wheatley hauled for common carriers, he had no certificate from the interstate commerce commission. Both Ellsworth and Mercury were common carriers of freight by motor truck in interstate commerce, pursuant to the authority of the interstate commerce commission (49 Stat. 543, as amended, 49 U.S.C. §§ 301-327 [49 U.S.C.A. §§ 301-327]) and the public utilities commissions of various states. On March 24, 1956, Wheatley and Ellsworth executed a writing, hereinafter referred to as a lease, which purported to cover the rental, to Ellsworth, of Wheatley's tractor. Whether because of carelessness or by design, the blanks in the printed form of the lease were so imperfectly filled out that the instrument on its face fails to state any complete agreement of lease of the tractor. It did provide that the term of the lease should be one month, beginning March 24, 1956, at 12:45 p. m., and that it covered one trip from Chicago to the eastern seaboard and return. A so-called manifest, nowhere specifically referred to in the lease, was filled out by Ellsworth in typewriting under date of April 13, 1956. It, also, is far from a model of clarity. It does indicate that Wheatley, termed the 'driver,' left Chicago with 843 cases of eggs, designated lots of which he was to deliver to 'LOL,' as consignee, in Springfield, Massachusetts; New Haven, Connecticut; Providence, Rhode Island; and Cambridge, Massachusetts.

The lease, on its face, was not a complete integration of the agreement between Wheatley and the defendant, and therefore parol evidence of the terms of that agreement not inconsistent with, but in amplification of, the lease itself was properly and necessarily considered, as was the manifest. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851, 70 A.L.R. 740; Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885. In so far as the lease contained applicable mutual agreements of the parties, these formed a part of the contract between them. Further oral arrangements were made, especially as to the return trip, as hereinafter more particularly noted. The lease clearly was not a one-way trip lease but a lease for one way 'and return.' It provided that it did not cover 'a power unit [tractor] when disengaged from the semitrailer carrying the cargo herein identified.' Actually, no cargo was 'herein identified.' The lease also contained a provision that it did not cover 'any use of * * * [Wheatley's] vehicle [tractor] * * * intended by the parties to be used to transport the cargo herein identified [and none was identified], where such vehicle use is not in the productive use to the interest of [Ellsworth].'

Prior to Wheatley's departure from Chicago, Ellsworth did not know whether it would have any return load or not, and Wheatley understood that and also that Ellsworth was under no obligation to furnish him with a return load. The manager of Ellsworth in Chicago instructed Wheatley that on completion of delivery of the eggs, that is, in Cambridge, he was to call Ellsworth's solicitor in Boston for a load, and if there was none, he was to get a load in the usual way. That meant, as it had in the past on similar trips when Ellsworth had no return load, that Wheatley was to try to secure a load from anyone he could.

Beginning in January, 1955, Wheatley had done similar hauling jobs for Ellsworth from time to time, using and personally operating, his Autocar diesel tractor, which was registered in Maryland, where he lived. On the trip in question, Ellsworth had to pay Mercury, for use of the semitrailer after the first ten dyas, a daily charge of $10. Wheatley, by his agreement with Ellsworth, was due back in Chicago within ten days of the time he left. If he carried a return load, he was obligated to pay Ellsworth, as trailer rental, 20 per cent of the freight charge. That charge was to be fixed by Wheatley. When he left Chicago, as well as at the time of the accident, his tractor displayed Ellsworth's interstate commerce commission and public utilities commission license numbers, and the semitrailer displayed Mercury's corresponding license numbers.

After the uneventful delivery of the last of the eggs, Wheatley, in accordance with his instructions, called Ellsworth's solicitor in Boston to see about a return load. Ellsworth sometimes had chocolate to be hauled from east to west. This time, however, Wheatley was told that Ellsworth had no return load of its own and he was to load for anyone he could. Wheatley made telephone calls to various companies in an endeavor to secure a return load. He finally succeeded in getting a load of fifteen tons of potatoes for delivery in Baltimore for a freight charge of about $100. Ellsworth maintained a terminal at North Bergen, New Jersey, a prime function of which was to supply loads to westbound trucks. It had no terminal in Boston. Before starting for Baltimore, Wheatley called the dispatcher at the North Bergen terminal, which was the nearest terminal to Boston Ellsworth had, and informed him that he had accepted the potato shipment for Baltimore. The dispatcher approved. The accident occurred as Wheatley was hauling the potatoes from Boston to Baltimore. There is no claim that he was not then on a direct route between those two cities.

In § 428 of the Restatement of Torts, it is stated that '[a]n 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.' We hold this rule applicable to a commercial motor vehicle such as this truck, except that we do not decide, nor is it necessary that we should decide, that the operation of such a common instrumentality as a commercial motor vehicle of which the component parts are a tractor and semitrailer necessarily involves an 'unreasonable' risk of harm to others. With respect to such a motor vehicle, we adopt the rule without the characterization of the risk of harm as 'unreasonable.' That there is a very considerable risk of harm to others in the carriage of freight over the highways in such a motor vehicle is obvious. Barry v. Keeler, 322 Mass. 114, 127 76 N.E.2d 158. The franchise rule imposes liability on Ellsworth for any negligence of Wheatley in the operation of the truck in the performance, in whole or in part, of Ellsworth's business...