Kaplan Trucking Company v. Lavine
| Decision Date | 11 March 1958 |
| Docket Number | No. 13232.,13232. |
| Citation | 253 F.2d 254 |
| Parties | KAPLAN TRUCKING COMPANY, Appellant, v. Shirley LAVINE, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Burns Weston, Cleveland, Ohio (Mark O'Neill, Cleveland, Ohio, of counsel; McConnell, Blackmore, Cory, Burke & Kundtz, Cleveland, Ohio, on the brief), for appellant.
Craig Spangenberg, Cleveland, Ohio (Ralph Rudd, Cleveland, Ohio, of counsel; Harrison, Spangenberg & Hull, Cleveland, Ohio, on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
The appellee was injured in a collision between an automobile in which she was a passenger and a truck being driven by Milton Fotta, an employee of the truck's owner, John Mogielski. At the time of the collision, December 31, 1953, Mogielski had leased the truck to the appellant, Kaplan Trucking Company. This appeal is from a judgment entered upon a jury verdict in favor of the appellee.
Neither the validity of the lease, the negligence of Fotta, nor the amount of the judgment are here in question. The appellant Kaplan challenges solely the finding that at the time of the collision Fotta was acting as the servant of Kaplan so as to impute liability to Kaplan under the doctrine of respondeat superior. The appellant contends that the district court should have directed a judgment in its favor, and, alternatively, that even if the agency issue was sufficiently doubtful to warrant submission to the jury, the court's instructions were erroneous and prejudicial. For the reasons hereafter discussed, it is our conclusion that the district court did not err in submitting the case to the jury, but that the judgment must be set aside for a new trial because of inadequacy of the court's instructions upon the question of agency.
At the time of the collision Kaplan was an interstate motor carrier holding permits from the Interstate Commerce Commission and the public utilities commissions of the states in which it operated. Part of Kaplan's business was carried on with its own fleet of trucks, but in accordance with the custom of the industry it also leased from independent owners much of the equipment which it operated. The leases were either for definite periods of time or "trip leases" for a particular delivery. Mogielski was one of the independent owners from whom Kaplan leased equipment on a long-term basis. Kaplan leased two trucks from Mogielski for a one year term; Mogielski himself was the driver of one of the trucks and Mogielski's employee, Fotta, the driver of the other. By the terms of the lease, Mogielski received seventy-five percent of the revenue derived by Kaplan from the use of his vehicles. From this, he was obliged to pay all operating expenses, including Fotta's compensation. Mogielski did not possess permits to operate as a carrier, and his trucks were operated under Kaplan's permits while leased to it.
Fotta and Mogielski lived in Pittsburgh, and Kaplan's Pittsburgh terminal was their home terminal. Much of Kaplan's business originating there was the transportation of steel to points in other states. Since there was often a disparity between the volume of freight going out of Pittsburgh and that coming in, it was not unusual for the drivers to find that upon reaching their delivery point, there was no cargo to be carried back to Pittsburgh.
The duty of the drivers of leased equipment in this situation is not entirely clear in the record. Kaplan's representatives testified that the drivers were under instructions to report to the nearest Kaplan terminal, and, if no load was available, to return empty to the home terminal. However, it was uncontradicted that if no return load was available, some of the owner-lessors and their drivers, including Mogielski and Fotta, customarily made a trip lease with another trucking company, in order to avoid the expense of an empty return trip. It was admitted by Kaplan's representative that this practice was tolerated by Kaplan because of its inability to enforce a prohibition against trip leasing. It was also shown that despite its disapproval of the practice, Kaplan had on occasion entered into trip leases with drivers who were under permanent lease to other companies.
Five days before the accident, on December 26, 1953, Fotta made a trip for Kaplan from Pittsburgh to Columbus, Ohio, with a load of steel. From Columbus, instead of proceeding to Kaplan's nearest terminal at Middletown, Ohio, Fotta drove to Mansfield, Ohio where he made a trip lease with Transamerican Freight Lines, Inc., to carry a load to Buffalo, New York. After delivering his Transamerican cargo in Buffalo on December 31, Fotta set out to drive back empty to Pittsburgh. When he was approaching Mercer, Pennsylvania, about sixty miles from Pittsburgh, the collision occurred which became the subject of this action.
Since the wrongful act occurred in Pennsylvania, we look to the law of that state to determine the question of Kaplan's liability. Although Mogielski was an independent contractor and Fotta was his employee, the appellant concedes at the outset that the law of Pennsylvania imposes the same liability as though Kaplan had been the owner of the truck and the employer of Fotta. A motor carrier operating under a public franchise cannot escape its responsibility to the public by conducting its business through independent contractors. Kissell v. Motor Age Transit Lines, 1947, 357 Pa. 204, 53 A.2d 593. This view is in accord with that of other jurisdictions. E.g., Venuto v. Robinson, 3 Cir., 1941, 118 F.2d 679; Barry v. Keeler, 1947, 322 Mass. 114, 76 N.E.2d 158; Thornberry v. Oyler Bros. Inc., 1955, 164 Ohio St. 395, 131 N.E.2d 383; see Restatement, Torts, § 428.
The strong policy considerations supporting this exception to the general common law rule exempting a principal from liability for the negligent acts of an independent contractor were thoroughly discussed by this court in American Transit Lines v. Smith, 6 Cir., 1957, 246 F.2d 86. In that case the lessee trucking company was held liable for the negligence of the lessor driver occurring after his load had been delivered and he was returning empty to the lessee's terminal in Cleveland.1 See also Hodges v. Johnson, D.C.W.D.Va.1943, 52 F.Supp. 488. Lehman v. Robertson Truck-A-Way, 1953, 122 Cal.App.2d 82, 264 P.2d 653.
This broad concept of responsibility parallels the policy of the federal agency entrusted with the regulation of the interstate trucking industry. Administrative Rule No. 4 of the Bureau of Motor Carriers, an agency of the Interstate Commerce Commission, sets out the circumstances under which a carrier may add to its equipment by leasing a vehicle and obtaining the services of its owner-driver:
"The lease or other arrangement by which the equipment of an authorized operator is augmented must be of such a character that the possession and control of the vehicle is, for the period of the lease, entirely vested in the authorized operator in such a way as to be good against the world, including the lessor; that the operation thereof must be conducted under the supervision and control of such carrier; that the vehicle must be operated by persons who are employees of the authorized operator, that is to say, who stand in the relation of servant to him as master."
To hold that liability is to be measured as though Kaplan were the owner of the truck and the employer of Fotta does not, however, at once dispose of this case. The question still remains whether at the time of the collision Fotta was acting within the scope of his employment. It is the actual relationship of the parties at the time of the collision that is controlling. Simon v. McCullough Transfer Co., 1951, 155 Ohio St. 104, 98 N.E.2d 19, 23.
It is the appellant's contention that the district judge should have held as a matter of law that Fotta was not acting within the scope of his employment for Kaplan when the collision occurred. In support of this position the appellant points out that in proceeding from Mansfield to Buffalo on the Transamerican trip lease Fotta had clearly departed from Kaplan's employment. Appellant contends further that in thereafter traveling from Buffalo to Pittsburgh, Fotta's intention was to return to his home for the New Year's holiday rather than to resume his service for Kaplan, so that the return journey served only his personal interest. Appellant cites two decisions exempting the lessee trucking company from liability for the negligence of a driver while proceeding to his own home. Stevens v. Deaton Truck Line, 1951, 256 Ala. 229, 54 So.2d 464; Van Hook v. Strassberger, Mo.App.1953, 259 S.W.2d 399.
In our opinion the question of whether Fotta was in the scope of his employment on Kaplan's business when the collision occurred was clearly one for the jury. In a memorandum denying a motion for a new trial the district court correctly pointed out the similarity between the present case and Marriott v. National Mutual Casualty Co., 10 Cir., 1952, 195 F.2d 462. In that case the driver-owner had leased his equipment on a long term basis to a trucking company. As in the present case, after making a delivery and finding no return load available, the driver made a trip lease with another trucking company. After completion of the trip lease, and while the driver was heading for his home terminal, the collision occurred. The Court of Appeals for the Tenth Circuit held as a matter of law that upon completion of the trip lease the driver had resumed the course of his regular employment with the permanent lessee.
There are two important differences between the present case and the Marriott case, however, which operated to create factual questions for a jury here which were not present in that case. First, the collision in the Marriott case occurred while the driver was on a direct homeward route — as though in the present case it had occurred on a direct return route from...
To continue reading
Request your trial
-
Brannaker v. Transamerican Freight Lines, Inc., 52351
...Lines, Inc., 6 Cir., 371 F.2d 403, 404--405(1, 4), certiorari denied 387 U.S. 931, 87 S.Ct. 2053, 18 L.Ed.2d 992; Kaplan Trucking Co. v. Lavine, 6 Cir., 253 F.2d 254, 259(8); Van Hook v. Strassberger, Mo.App., 259 S.W.2d 399, 407(13--14); Stone v. Reed, Mo.App., 247 S.W.2d 325, 331--332(6--......
-
Cox v. Howard Hall Co.
...while the driver was on a mission outside the line and scope of his employment. For a similar decision see Kaplan Trucking Company v. Lavine, 253 F.2d 254 (6 Cir. 1958). A similar result was reached in Gackstetter v. Dart Transit Company, 269 Minn. 146, 130 N.W.2d 326, in connection with th......
-
Gackstetter v. Dart Transit Company
...(1960 ed.)2 Restatement, Agency (2d) § 2, Comment b.3 Duke v. Thomas, 343 S.W.2d 656 (St. Louis ct. of App. Mo.); Kaplan Trucking Co. v. Lavine (6 Cir.) 253 F.2d 254; Leotta v. Plessinger, 8 N.Y.2d 449, 209 N.Y.S.2d 304, 171 N.W.2d 454; Mellon Nat. Bank v. Sophie Lines, Inc. (3 Cir.) 289 F.......
-
Gudgel v. Southern Shippers, Inc.
...of respondent superior, Swanbeck v. Hubbard, 336 Ill.App. 384, 84 N.E.2d 159 (1949), or the public franchise rule, Kaplan Trucking Co. v. Lavine, 6 Cir., 253 F.2d 254 (1958). Plaintiff's theory of the case is that at the time of the collision Freischlag was driving the tractor from Decatur,......