Ensco, Inc. v. Weicker Transfer and Storage Co., s. 80-1889

• Decision Date: 22 September 1982
• Docket Number: 80-1940,Nos. 80-1889,s. 80-1889
• Citation: 689 F.2d 921
• Parties: ENSCO, INC., Plaintiff-Appellant and Cross-Appellee, v. WEICKER TRANSFER AND STORAGE CO., Defendant-Appellee and Third-Party Plaintiff, v. Warren JAYCOX, Defendant-Appellee, v. UNION PACIFIC RAILROAD COMPANY, Third Party Defendant Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 921

689 F.2d 921

ENSCO, INC., Plaintiff-Appellant and Cross-Appellee, v. WEICKER TRANSFER AND STORAGE CO., Defendant-Appellee and Third-Party Plaintiff, v. Warren JAYCOX, Defendant-Appellee, v. UNION PACIFIC RAILROAD COMPANY, Third Party Defendant

Appellee-Cross-Appellant.

Nos. 80-1889, 80-1940.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1982.

Teryl R. Gorrell, Head, Moye, Carver & Ray, Denver, Colo. (Pamela A. Ray, Head, Moye, Carver & Ray, Denver, Colo., with him on the brief) for plaintiff-appellant cross-appellee Ensco, Inc.

William K. Ris, Wood, Ris & Hames, Denver, Colo., for defendant-appellee and third party plaintiff Weicker Transfer and Storage Co., and defendant-appellee Warren Jaycox.

John J. Mullins, Jr. and Edward Imatani, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., for third party defendant-appellee-cross-appellant.

Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

I. PRELIMINARY DISCUSSION

This is a transportation of equipment case. The determinative issue is whether under the facts and applicable law Weicker Transfer and Storage Co. was in the special circumstances presented acting as a common carrier, or as a contract carrier or lessor of equipment and servant.

The trial court found that Weicker had leased its equipment and driver to the appellant Ensco.

This appeal is from a judgment which was the result of a truck-train accident. The trial court held that none of the defendants were liable to Ensco for damages suffered. The appeal is from that denial, and from the further judgment of the court which awarded damages to Weicker on its counterclaims for repairs to its truck and shipping charges.

In 1976 Ensco contracted with the Federal Railroad Administration (FRA) to conduct tests of railroad track geometry on a section of Union Pacific track near Barstow, California. A highly sophisticated instrument known as the Track Survey Device was to be used for the tests. It is referred to as the TSD. It was built for FRA at a cost of a million dollars by General Applied Science Laboratories. It is a machine which incorporates a computer and a laser reference system. It has two self-propelled rail vehicles that function jointly in measuring track geometry. It weighs more than thirteen tons and has to be transported by truck from one test site to another. A crane lifts the TSD vehicles on and off the tracks as it is necessary.

Just prior to the present transaction, the TSD was stored at the Department of Transportation Test Center near Pueblo, Colorado. It was necessary, therefore, to transport it to California where the test site was located. Weicker was employed to do this work because it had previously handled the equipment (the TSD) for Ensco during other track tests in Colorado. Weicker had provided a truck and also crane service for two tests which took place in 1976, and crane service for a test which took place in 1973.

Weicker was not authorized by the I.C.C. to operate as an interstate motor common carrier. It is authorized to transport commodities needing specialized handling or rigging because of size or weight between points in Colorado. It also had interstate contract carrier authority, limited to hauling fertilizer for a Wyoming company. Additionally, Weicker acted as the agent of Allied Van Lines in hauling household furniture, and it had intrastate common and contract carrier operating authority from the Colorado Public Utilities Commission (PUC). This is the sum total of Weicker's authority, and it is plain that it did not cover the instant activity.

Weicker was hired by Ensco to haul the TSD to Las Vegas, Nevada first. It was then to transport the TSD equipment to various test sites, within a 100-mile radius of Las Vegas. Weicker was also requested to provide crane service. Although it agreed to transport the TSD, it suggested that Ensco hire a crane service in Las Vegas. Ensco hired Jake's Crane and Rigging, Inc., of Las Vegas, to move the TSD on and off the tracks at the test sites.

Because Weicker did not have any interstate operating authority, the dispatcher had decided to purchase such authority for the trip. He contacted a broker in Pueblo, who sold to Weicker for $100 a "Freeport Lease" which ostensibly authorized Weicker to make the haul under the operating authority of Freeport Transport, Inc. Weicker was given a Freeport sign, which was attached to the cab. This served to give only an appearance of legality; the truth was that the purchased authority only authorized contract carriage of railway equipment for A & K Railroad M. Materials, Inc., a company which was not connected in any way with Ensco.

The driver of the Weicker transport was one Warren Jaycox but Ensco personnel supervised the loading of the TSD onto Weicker's trailer at the test center in Pueblo. Jaycox then drove the truck from Weicker's terminal in Pueblo to Jake's Crane and Rigging, Inc., in Las Vegas, where it arrived on January 5, 1977. He learned that the tests had been postponed and was told that he should fly home to Pueblo at Ensco's expense. He left the truck and the TSD at Jake's Crane and Rigging, Inc. and flew back to Las Vegas about two weeks later. There he met on January 18th with the Ensco personnel who were to conduct the testing. He was given directions to the test site by a Union Pacific representative. Jaycox and the Ensco personnel returned to Jake's to examine the truck and also the TSD. On January 19, Jaycox ascertained from Ensco personnel the best route to the site of the work. He had to travel on several dirt roads adjacent to the Union Pacific tracks in order to reach the site in question. The initial test was to have taken place that night. Jaycox left for the test site alone early that afternoon to ensure that he would be there before dark. He drove west on interstate highway into California, and then followed the dirt roads south toward the site. At dusk he arrived at a point where the road crossed two sets of railroad tracks. He drove slowly over the tracks, but became high centered. His efforts to free the truck were unsuccessful. Approximately thirty minutes later the truck was hit by a west bound Union Pacific train. This severely damaged the TSD and the tractor-trailer, and resulted in the test being aborted. The TSD was eventually transported to Colorado Springs for repairs. Ensco performed the repairs itself, eventually billing the FRA for $82,762.64.

Thereupon, suit was filed by Ensco against Weicker and Jaycox acting on behalf of FRA pursuant to FRA's request. It was alleged that Weicker was liable as a common carrier for direct and consequential damages resulting from the collision, or, in the alternative, that Jaycox and Weicker were liable under a negligence theory. Essentially the suit on behalf of Ensco is under the so-called Carmack Amendment. Weicker counterclaimed against Ensco for damages to its tractor-trailer and for shipping charges. Jaycox and Weicker also impleaded United Pacific, asserting property damage and indemnification claims. Union Pacific filed claims against Ensco for indemnification and against Weicker, Jaycox and Ensco for damage to its locomotive.

II. THE DECISION OF THE TRIAL COURT

Following a trial to the court judgment was entered against Ensco on all of its claims, and in favor of Weicker on its claims for damage to the truck and for shipping fees. In explaining its judgment the court stated that the agreement between Ensco and Weicker was most appropriately characterized as a contract to rent a tractor-trailer and driver rather than as common or contract carriage. The court conceded that the operation itself might have been regarded as common carriage prior to arrival in Las Vegas, but thereafter, the court stated that "from that point forward * * * there was no doubt * * * that Ensco was exercising such a degree of control, authority and direction as to make this clearly a rental of a tractor-trailer and driver rather than a contract for drayage by common carrier." In support of its finding, the court said that Jaycox had been acting as a borrowed servant of Ensco at the time of the collision. A further finding of the court was that neither Jaycox nor any of the other defendants had been negligent in any respect with regard to the accident; that the collision was caused not by negligence on anyone's part, but by the unforeseeable occurrence of the tractor's wheels sinking into the soft ballast between the two sets of tracks at the crossing. Moreover, the court found that Ensco had failed to prove that it had mitigated its damages, or that its damages were reasonable. The FRA had ordered Ensco to repair the TSD itself without any investigation of whether other parties, such as the original builder, could do the job more reasonably and cheaply. Repairs had been performed on a cost-plus basis, with substantial allotments for overhead and profit. The court also concluded that Weicker had produced adequate proof of the damage to its tractor-trailer and as to the rental fee due and owing, and that Ensco was liable for both amounts.

III. DISCUSSION OF ISSUES

The contested issues on appeal are: the validity of the trial court's refusal to award Ensco damages for repairing the TSD, and also the validity of the award of truck rental fees to Weicker. There was previously an issue as to liability of Ensco to Weicker for the repair of its tractor-trailer which was resolved in favor of Weicker, but since the entry of judgment, Weicker has confessed error with regard to that part of the judgment in its favor. We have examined the facts and are in agreement with the position that was thus taken by Weicker. Union Pacific has appealed also, stating that it was dissatisfied with the trial court's judgment, but urging this court to reconsider its indemnification claims which were rejected by the district court. This would be necessary only if this court modified...