Hill v. Carolina Freight Carriers Corp., 599

• Decision Date: 11 June 1952
• Docket Number: No. 599,599
• Citation: 235 N.C. 705,71 S.E.2d 133
• Court: North Carolina Supreme Court
• Parties: HILL, v. CAROLINA FREIGHT CARRIERS CORP.

Page 133

71 S.E.2d 133

235 N.C. 705

HILL, v. CAROLINA FREIGHT CARRIERS CORP.

No. 599

Supreme Court of North Carolina.

June 11, 1952

D. A. Rendleman, Salisbury, and Morton & Williams, Albemarle, for plaintiff appellant.

Don A. Walser, Lexington, for defendant appellee.

BARNHILL, Justice.

Defendant asserts two affirmative defenses, either one of which, if well founded, would, on the facts admitted in the pleadings, bar plaintiff's right to recover. This is true unless, as contended by plaintiff, the master is not protected under the fellow servant doctrine against liability for damages to the personal property of his servant caused by the negligent act of a fellow servant committed in the course, and in the furtherance, of his master's business. This necessitates a discussion of both defenses to the end that we may answer the two questions posed for decision: (1) Were the plaintiff and Brown, the operator of the truck which collided with plaintiff's tractor, fellow servants; and (2) does the trip-lease contract between plaintiff and defendant, fairly and correctly construed, exculpate defendant from liability for damages proximately caused by one of its employees while about his master's business?

The mishap out of which this action arose occurred in Georgia. Hence plaintiff seeks to enforce in the courts of this State a cause of action which arose in that State. His right of action depends upon and is controlled by the substantive law of that State.

In Georgia the fellow servant doctrine has been reduced to statutory form. Georgia Code of 1933, sec. 66-304, provides: 'Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.'

In interpreting and applying this statute, the Supreme Court of Georgia has expressly rejected the consociation or departmental limitation now engrafted on the doctrine by modern decisions and apparently adheres to the general rule as orginally formulated. Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289, 62 S.E. 193; Holliday v. Merchants' & Miners' Transp. Co., 161 Ga. 949,132 S.E. 210. Therefore, we may concede, without deciding, that plaintiff, as operator of his tractor, and Brown were coemployees and, being coemployees, were fellow servants.

The Georgia Code, sec. 66-302, further provides that: 'All contracts between master and servant, made in consideration of employment, whereby the master is exempted from liability to the servant arising from the negligence of the master or his servants, as such liability is fixed by law, shall be null and void, as against public policy.'

So then, if plaintiff and Brown were fellow servants, the exculpatory provisions in the contract are void and unenforceable.

Thus it becomes essential to determine whether plaintiff's cause of action and the rights he now asserts arose out of the master-servant relation.

The contract between plaintiff and defendant is of a hybrid nature. It is labeled 'A Trip Lease Agreement'. In form, in part at least, it purports to create a bailment for hire. The lessor is to 'deliver' the leased vehicle to the lessee who 'is to have exclusive possession and control' for operation under his exclusive supervision. As actually performed by the parties in accord with some of its other terms, the leased vehicle remained in the custody of the lessor or owner and was to be operated by him or by one of his own choosing, on a point-to -point trip, for a stipulated consideration. The plaintiff was to make 'deliveries and pickups according to CFCC dispatchers instructions from trip to trip.' He determined the number of helpers to be employed, he assumed responsibility for overloads, improper tags, the actual operation as to speed and the like, losses from fire, theft, or collision, and he was to be paid a per-trip stipend for the use of his vehicle and driver.

Hence, as between the plaintiff and the defendant, purely in respect to their mutual contractual rights and liabilities, one to the other, the owner of the vehicle occupied the position of independent contractor. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137; Bass v. Fremont Wholesale Corp., 212 N.C. 252, 193 S.E. 1; Hudson v. Gulf Oil Co., 215 N.C. 422, 2 S.E.2d 26; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515; U.S. v. Mutual Trucking Co., 6 Cir., 141 F.2d 655.

On the other hand, the vehicle was to be operated in interstate commerce in furtherance of the business of the lessee as a franchise carrier of freight. It was to be operated under the franchise and license plates of the lessee in fulfillment of its contracts for transportation of freight in interstate commerce. Therefore, the person who actually operated the vehicle (whether the owner or a third party hired by him) was, as between the franchise carrier and the consignor, the consignee, and third parties generally, a servant or employee of the defendant. This is true in fact for he transported cargoes in behalf of the franchise carrier and dealt with the consignors, consignees, and the public generally as agent of the franchise carrier. Furthermore, public policy requires it to be so held.

As plaintiff elected to operate his own tractor, he was, as operator, a servant of defendant. Brown v. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71; Roth v. McCord & Dellinger, 232 N.C. 678, 62 S.E.2d 64; Greyvan Lines v. Harrison, 7 Cir., 156 F.2d 412, affirmed 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757.

That is to say, the relation of independent contractor was created by the contract. The master-servant relation arose when plaintiff--in lieu of employing someone else--undertook to operate the tractor trailer for defendant in fulfillment of his contract. One is entirely dependent upon, and the other is entirely independent of, the contract.

The plaintiff's cause of action did not arise out of and does not rest upon the master-servant relation created when he became the operator of the tractor he had 'let' to defendant. He sues as owner of the tractor. In respect to this action he is in the same position he would have been had he employed some third party to operate the vehicle. Had he employed someone else to operate the tractor, it could not then have been said that he was an employee of defendant. He would have been nothing more than a bailor operating under a contract which made him an independent contractor. For the purpose of determining the relative rights and liabilities of the parties involved in this litigation, that is his staus in this action.

It follows that the fellow servant doctrine has no application here and constitutes no valid defense to plaintiff's action.

Brown, as operator of the vehicle which collided with plaintiff's tractor, was an employee of defendant. Brown v. Bottoms Truck Lines, supra; Roth v. McCord & Dellinger, supra; Conceding that his negligence proximately caused the damages to the tractor for which plaintiff seeks to recover, does the provision in the contract that plaintiff 'will bear * * * all losses thru * * * collision to said motor vehicle' exculpate defendant and relieve him of all liability therefor?

The question must be answered in the negative for two reasons: (1) the language used does not clearly indicate that the parties so intended; and (2) if the parties so intended it would be contrary to establish public policy to permit a common carrier to contract against liability for damages caused by the negligence of its own employees while engaged in operating its vehicles used in interstate commerce.

In evaluating the force and effect of the contract provision, it is essential that we take...