Hodges v. Johnson, Civ. No. 152-155.

• Decision Date: 04 November 1943
• Docket Number: Civ. No. 152-155.
• Citation: 52 F. Supp. 488
• Parties: HODGES et al. v. JOHNSON et al.
• Court: U.S. District Court — Western District of Virginia

52 F. Supp. 488

HODGES et al. v. JOHNSON et al.

Civ. Nos. 152-155.

District Court, W. D. Virginia, at Roanoke.

November 4, 1943.

J. Bradie Allman, of Rocky Mount, Va., for plaintiffs.

Harvey B. Apperson and Fred B. Gentry, both of Roanoke, Va., for defendants.

A. L. Hughson, of Roanoke, Va., for third party defendant.

BARKSDALE, District Judge.

Statement of the Case.

This action is the consolidation of three actions for personal injuries instituted by three separate plaintiffs, and one action for death by wrongful act instituted by the administrator of the deceased, against Bruce Johnson, trading as Bruce Johnson Trucking Company (hereinafter referred to as "Johnson"), owner of a freight truck, and Clifton Gilmore, the operator thereof as his agent. All the causes of action arise from one collision between the motor truck of Johnson, operated by Gilmore, with the automobile in which the injured plaintiffs and the deceased were travelling. Defendant Johnson filed his third party complaint against Jocie Motor Lines, Incorporated (hereinafter referred to as "Jocie"), alleging that at the time of the accident Johnson's truck had been leased to Jocie, and that therefore he, Johnson, was not liable for the negligence of Gilmore, if any, but that Jocie was. Jocie answered denying any liability for the operation of the truck by Gilmore.

Pursuant to a pretrial conference, the issue of whether Johnson or Jocie, or both, were liable for the negligence of Gilmore, if any, was first submitted to the court, without a jury, before the trial of the other issues in the case. Upon such issue, I find the facts specially and state separately my conclusions of law, as required by Rule 52(a), as follows:

Findings of Fact.

The accident, which is the basis of this action, occurred on March 30, 1943. Johnson, at and before that time, was engaged in the trucking business in Charlotte, N. C., but had no certificate from the Interstate Commerce Commission permitting him to haul general commodities in interstate commerce. Jocie, also engaged in the trucking business in Charlotte, N. C., did have such a certificate. In order to enable Johnson to haul Swift & Company's products in interstate commerce, Johnson suggested to Jocie that they enter into a lease agreement whereby Jocie would lease the trucks to Johnson, who would haul the products of Swift and others in interstate commerce in the name of Jocie and under authority of Jocie's certificate and license from the Interstate Commerce Commission. Jocie readily agreed, as it had already all the business it could do with its own trucks. Under the agreement and course of conduct of these two truckers, Johnson proceeded to do interstate hauling in his trucks, operated by his drivers, paying for the upkeep and running expenses of the trucks. All freight hauled under the agreement was hauled on standard bills of lading in the name of Jocie, Jocie's name being signed to such bills by whatever employee of Johnson as happened to check the shipment on board the truck. Jocie paid certain taxes, insurance premiums, etc., and Johnson received 80% of the freight charges and Jocie received 20%. Of this 20%, about 8% was net to Jocie after paying such expenses as it was obligated to pay. Jocie sometimes obtained a return load of freight for Johnson's truck and such return freight was handled the same way. Johnson never hauled return loads of interstate freight for himself, but always for and in the name of Jocie.

Jocie never exercised any control over the operation of Johnson's trucks, or undertook to direct or supervise either the methods, the means, the time, or the routes, for such hauling. Johnson paid, hired and fired his drivers without regard to Jocie.

The trip upon which the accident occurred began in the late evening of March 29, 1943. The load was lard or shortening from Swift & Company in Charlotte, N. C., to two consignees in Roanoke, Virginia. Bills of lading were made out and signed in the name of Jocie by an employee of Johnson. As it was late, the driver, Clifton Gilmore, left Charlotte with the load and copies of the bills of lading, and did not wait for way bills to be made out by Jocie. In fact, Jocie did not know anything about the shipment until informed of the wreck the following day. Gilmore proceeded to Roanoke, delivered his load, procured the signatures of the two consignees on his bills of lading, and was returning empty to Charlotte with his bills of lading when he negligently collided with the automobile of plaintiff, Hubert D. Hodges, near Rocky Mount, Virginia, in this district, causing the death and injuries here complained of.

Conclusions of Law.

(1) I conclude that Johnson, the owner of the truck, as the employer of Gilmore, and having the supervision and control of his operation, is liable for Gilmore's negligence.

(2) I conclude that Johnson was an independent contractor, and upon the familiar general rule of respondeat superior, there would be no liability upon Jocie for the negligence of Gilmore. Malisfski v. Indemnity Ins. Co., etc., 4 Cir., 135 F. 2d 910; annotation, 42 A.L.R. 1416, and cases therein cited.

(3) However, inasmuch as it appears to me that the situation here presents an exception to the general rule that an employer of an independent contractor is not liable for bodily harm caused by such independent contractor or his servants, I conclude that Jocie is jointly and severally liable with Johnson for the negligence of Johnson's servant, Gilmore.

The exception to which I refer is stated in the "Restatement of the Law of Torts", p. 1149, Section 428, as follows:

"Sec. 428. Contractor's Negligence in Doing Work Which Cannot be Lawfully Done Except under a Franchise granted to His Employer.

"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."

Undoubtedly, at the time of the accident which is the basis of this action, Johnson, the independent contractor, was carrying on an activity which could be lawfully carried on only under a franchise or certificate granted by the Interstate Commerce Commission, a public authority. Jocie had such a franchise, and Johnson did not, and that was the sole reason for the lease agreement. I am also satisfied that this activity involved an unreasonable risk of harm to others. It is a matter of common knowledge...