Johnson v. Pacific Intermountain Exp. Co.

• Decision Date: 22 November 1983
• Docket Number: No. 65102,65102
• Citation: 662 S.W.2d 237
• Parties: Cathy Jean JOHNSON, and Thomas Ray Boatz Johnson and Rebecca Joyce Johnson by their next friend Cathy Jean Johnson, Plaintiffs-Respondents, v. PACIFIC INTERMOUNTAIN EXPRESS CO., and Marlo Transport Corporation, Defendants- Appellants.
• Court: Missouri Supreme Court

Page 237

662 S.W.2d 237

Cathy Jean JOHNSON, and Thomas Ray Boatz Johnson and Rebecca Joyce Johnson by their next friend Cathy Jean Johnson, Plaintiffs-Respondents, v. PACIFIC INTERMOUNTAIN EXPRESS CO., and Marlo Transport Corporation, Defendants- Appellants.

No. 65102.

Supreme Court of Missouri En Banc.

Nov. 22, 1983.

As Modified on Denial of Rehearing Dec. 20, 1983.

John E. Price, Harold J. Fisher, Mark E. Gardner and David A. Childers, Glen A. Burkart, Springfield, for defendants-appellants.

Thomas Strong and John Wooddell, Springfield, for plaintiffs-respondents.

BLACKMAR, Judge.

Thomas Johnson was killed November 19, 1978 in a collision in Dallas County between a car in which he was a passenger and a 1978 Kenworth tractor trailer unit, leased by Tabor and driven by Brown. His widow, Cathy, and minor children obtained judgment against Pacific Intermountain Express Co. (P.I.E.) and Marlo Transport Corporation, for $750,000. No issue was preserved as to the negligence of Brown or as to the amount of the verdict. The defendants appealed to the Missouri Court of Appeals, Southern District, which affirmed with one dissent as to P.I.E. We transferred the case and now decide it as on original appeal. We likewise affirm.

The only assertion of trial error is easily disposed of. Cathy, prior to the trial, had married Samuel Lower. She continued to use the name "Cathy Jean Johnson," and on May 1, 1981 the Circuit Court of Webster County entered an order "reaffirming" that name for her. Before trial of the case the plaintiffs sought and obtained an order in limine, suppressing reference to Cathy's marriage to Lower, to her surname as Lower, and to Lower as her husband. The jurors were questioned on voir dire as to acquaintanceship with Lower, but without identifying him as Cathy's husband, and none responded. There was evidence of "household services" performed by Thomas Johnson, and the defendants sought to introduce evidence of the remarriage to show that Lower was available in Johnson's stead. They also complain of Cathy's use of the name Johnson, citing cases holding that a witness in her situation must answer with her "true" name. ¹

The point is not well taken. A married woman may take a name which is not that of her current husband. Matter of Natale, 527 S.W.2d 402 (Mo.App.1975). Cases holding that a witness must give her true name, relying on a cautionary instruction to dispel possible prejudice, are not in point because Cathy answered with her true legal name. The reference to Lower's potential household services in mitigation of damages is no more appropriate than is mention of his potential earnings. ² The defendants understandably wanted the jury to know about Cathy's remarriage in the hope that they would take this into account in determining damages in spite of any cautionary instructions that might be declaimed. Here no untrue statements were made and the jury was not deprived of any information it had a right to have. No purpose would be served by telling the jurors about the remarriage and then instructing them to disregard the information.

The remaining questions have to do with the vicarious liability of P.I.E. and of Marlo. Each argues vigorously that it is not liable. This requires detailed consideration of the evidence as to the ownership, leasing and operation of the 1978 Kenworth, taken most strongly from plaintiffs' standpoint.

Tabor, a resident of St. Louis, owned or leased two tractors, each of which operated with a trailer in an 18-wheel unit. He secured the services of Brown and of Singleton as drivers, and would sometimes operate with them so as to provide three drivers for the two vehicles. There was a conflict in the testimony as to whether the drivers received fixed compensation or a share of the earnings. Brown, who was apparently the principal operator of the 1978 Kenworth, died of natural causes after the accident in issue, and evidence about the operation of that vehicle came primarily from Singleton.

None of the three had any kind of Interstate Commerce Commission or state authority for the transportation of freight. After the 1978 Kenworth was acquired a pattern of operation was developed in which a load of produce would be picked up on the West Coast and hauled to the East Coast. Agricultural products are exempt commodities which require no operating authority for shipment in interstate commerce. ³ After the produce was unloaded the drivers would look for a westbound load, which would usually involve the leasing of the equipment to a common carrier possessing ICC authority. Leases of this kind are permitted by ICC regulations, under conditions which are very important to this case and will be discussed in detail at a later point. The regular drivers would then drive the loaded vehicle to the destination specified by the carrier, after which another exempt eastbound load of produce would be sought.

P.I.E. is a major interstate carrier of freight. Although it disclaimed any knowledge at all of any lease or other dealing with Brown, Tabor, or Singleton, the latter two testified to the several trips by the 1978 Kenworth under lease to P.I.E. Singleton told of a visit to a P.I.E. terminal in New Jersey, which had a sign identifying it as such, in which he dealt with a man named Ray Dean, who directed the loading of the trailer and provided advance money for expenses. Dean delivered shipping documents, including a trip lease, which were carried with the vehicle, and signs or placards evidencing operation under P.I.E. authority, which were affixed to the tractor. On the first trip Dean told Singleton that he could either mail the signs in at the end of the trip or bring them back with his next eastbound load. Singleton elected the latter option. There were more westbound trips under P.I.E.'s authority, arranged with Dean. The precise number of these is not clear, but the jury could have found at least three. At the beginning of the second trip another set of signs was furnished. Dean did not ask that these be returned, and at least one of them remained on the truck until the accident. The truckers' copies of the trip leases were apparently discarded at the end of each run. Tabor testified about receiving payments from P.I.E. and dealing with a P.I.E. representative in East St. Louis.

Although the evidence is sketchy, the jury could have found that the 1978 Kenworth made its last westbound trip under P.I.E.'s operating authority 10 or 12 days before the accident, that it carried signs previously furnished by P.I.E., that P.I.E. made no effort to collect the signs at the end of the run, and that at least one sign was on the tractor at the time of the accident. There is no evidence, however, that the fatal trip was carried on under P.I.E.'s authority or with its knowledge, or that P.I.E. had any interest in the revenues. Any claim the plaintiffs have against P.I.E., then, must depend on a constructive agency derived from the federal statutes and regulations adopted by the Interstate Commerce Commission pursuant to those statutes.

The load for the fatal trip was arranged by defendant Marlo Transportation Company, which is a "freight broker." A freight broker exists to put shippers in touch with truck operators. Marlo does not operate trucks and has no ICC or other operating authority. Marlo learned that the 1978 Kenworth was available for a westbound trip, and arranged for a load of steel to be hauled from the plant of Franklin Stainless Corporation in New York to a consignee at Broken Arrow, Oklahoma. An employee of Marlo accompanied the rig to the plant and back to Marlo's place of business in New Jersey. The P.I.E. sign was on the vehicle at the time. The jury could have found that Marlo was aware of the sign and that it knew that this shipment had no connection whatsoever with P.I.E. It could also find that Marlo knew that the shipment would be carried without valid operating authority of any kind, and was indifferent to this absence of authority.

The unit, besides operating without authority, carried a load which was over the weight limits for several states on the route. The drivers selected a route designed to avoid weight stations. Singleton testified that the P.I.E. sign might be helpful in avoiding "policemans and highway patrolmans." There is no evidence that Marlo was aware of the overload, specified the route to be followed, or took note of possible involvements with "the law."

Marlo paid an advance to the drivers before the trip began. There was evidence that Marlo was to collect the freight charges from the shipper or the consignee, retaining 25% and remitting the balance to Tabor. The evidence as to the actual monetary settlement following the accident was not developed, and seems immaterial.

1. Marlo's Liability

The issue of Marlo's liability was submitted by an instruction ⁴ requiring findings on issues now disputed, as follows:

INSTRUCTION NO. 8

Your verdict must be for plaintiffs Cathy Johnson, Thomas R. Johnson, and Rebecca Johnson and against defendant Marlo Transport Corporation if you believe:

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Second, Lee Brown, Jr., was operating the Kenworth Truck within the scope and course of his agency for Marlo Transport Corporation at the time of the collision, and

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Acts were within the "scope and course of agency" as that phrase is used in this instruction if:

1. They were performed by Lee Brown, Jr. to serve the interests of Marlo Transport Corporation according to an express or implied agreement with Marlo Transport Corporation, and

2. Marlo Transport Corporation either controlled or had the right to control the physical conduct of Lee Brown, Jr.

Marlo argues, vigorously, that there is no evidence that it had control over, or the right to control, Brown as he headed west with the truck. It asserts that it properly retained the proprietor of the truck, (whether Tabor, Brown, Singleton, or some combination of the three)...