Marion Trucking Co. v. Byers, 18094

• Decision Date: 02 April 1951
• Docket Number: No. 18094,18094
• Citation: 121 Ind.App. 592,97 N.E.2d 635
• Parties: MARION TRUCKING CO., Inc. et al. v. BYERS.
• Court: Indiana Appellate Court

Page 635

97 N.E.2d 635

121 Ind.App. 592

MARION TRUCKING CO., Inc. et al. v. BYERS.

No. 18094.

Appellate Court of Indiana, in Banc.

April 2, 1951.

James L. Murray, James J. Stewart, Murray, Mannon, Fairchild & Stewart, Indianapolis, for Marion Trucking Co.

George P. Ryan, Alan T. Nolan, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

CRUMPACKER, Judge.

On June 6, 1947, one Don Burkett was in the general employ of the appellant Marion Trucking Company, Inc., and while driving a tractor belonging to his employer, in a southerly direction on Capitol Avenue in the city of Indianapolis, collided with an automobile being driven north on said street by the appellee Ray Byers. Upon suit Byers recovered judgment against both the Marion Trucking Company, Inc., and Burkett and they appeal. Burkett, however, has filed no brief in support of his position nor is he represented by counsel and we assume that he has abandoned his appeal. It will be understood, therefore, that in the use of the word 'appellant' hereafter we refer to the Marion Trucking Company, Inc., only.

The sole question presented by this appeal may be stated thus: Was Burkett, at the time and place of the collision in controversy, acting as the appellant's agent and driving said tractor in and about the appellant's business and within the scope of his employment, thereby charging the appellant with responsibility for his negligence through the doctrine of respondeat superior? The appellant contends that there is no evidence of probative value in the record tending to prove that Burkett was so acting and therefore the verdict of the jury is contrary to law and it was error to deny its motion for a new trial.

The essential facts, pertinent to this question, are undisputed and many be summarized as follows: The appellant Marion Trucking Company, Inc., is a corporation engaged in the transportation of freight, as a common carrier, over the highways of Indiana. For such purpose it owns and operates types of motor vehicles known as tractors which are coupled to so-called trailers, in which freight is loaded, and when so coupled furnish the motor power to haul the loaded trailers over the various routes served by the appellant. In connection with its business the appellant maintains a terminal and loading dock at 14th Street and Northwestern Avenue in Indianapolis which, on June 6, 1947, and for six months prior thereto, was and had been under the management and control of one Richard Evans. During the time involved in this litigation the appellant also employed one Ed Ashmore at this terminal who was known as a night dock man and whose duty it was to help drivers on through runs to unload freight designated for Indianapolis. He had no authority over drivers or equipment but took custody of bills of lading etc. left with him by drivers who completed their runs and went off duty after the terminal office had closed. He was also authorized to report any infraction of the company's rules that he might observe while on duty.

Burkett was employed by Evans as a road driver on June 2, 1947, and had worked but three or four days prior to the collision here involved. His primary duty was to make what the appellant calls its Marion 'turn-around.' On this run he left the Indianapolis terminal each evening at about 7 o'clock and drove to Marion, Indiana, a distance of about 70 miles, where he dropped off freight, reloaded and returned to Indianapolis, usually arriving there shortly before or after midnight. He was then off duty until the following evening at 7 o'clock for the same run. The appellant also operated a similar turnaround from Indianapolis to Lafayette, Indiana, and return. Drivers were dispatched on this run at about 6 o'clock a. m. and were due back at the Indianapolis terminal around 11 o'clock the same morning. A driver who made both these runs within a period of 24 hours did what is technically known as a 'double turn-around.' When asked to define a double turn-around' Evans said, 'it is two distinct turn-arounds not necessarily bearing on one another.'

The appellant's business relations with its drivers are governed by a contract with the Teamster's Union under the terms of which said drivers are paid 4 1/2 cents per mile for 'driving duty' and $1.60 per hour for 'off driving duty.' 'Driving duty' is time actually spent behind the wheel driving a trucking outfit. 'Off driving duty' is time spent by the driver away from his outfit but while he is still responsible for it, such as parking while getting necessary food and rest or while waiting at a dock for his truck to be loaded or unloaded. When he has returned his outfit to the terminal after the completion of a run, checked in, and is not due back at the dock until sometime later to make another run, he is off duty and is not paid during the interval. Taxi cab, bus or trolley car service to and from the appellant's terminal in Indianapolis is difficult to procure late at night or early in the morning but the appellant made no specific provisions for their drivers in that respect and regarded the difficulty as the driver's problem. The appellant had a standing rule prohibiting the use of tractors by their drivers for personal business or convenience, notice of which was kept posted on the bulletin board in the home office in Marion and in the terminal office in Indianapolis. In addition to such notices Evans orally instructed Burkett to that effect when he employed him. He was also told at that time that upon his return to the Indianapolis terminal each night after completing the Marion turn-around he...