May v. James G. Pardee Co.

• Decision Date: 04 April 1956
• Docket Number: No. 34503,34503
• Citation: 165 Ohio St. 126,133 N.E.2d 599
• Parties: , 59 O.O. 154 MAY et al., Appellees, v. The JAMES G. PARDEE CO., Appellant.
• Court: Ohio Supreme Court

Page 126

165 Ohio St. 126

133 N.E.2d 599, 59 O.O. 154

MAY et al., Appellees, v. The JAMES G. PARDEE CO., Appellant.

No. 34503.

Supreme Court of Ohio.

April 4, 1956.

Syllabus by the Court.

The negligence of a driver of a truck, who is as to the owner of the truck an independent contractor, will not be imputed to such owner merely because the operation of the truck at the time requires use of a permit from the Public Utilities Commission of Ohio, if at that time such required permit has been lawfully supplied by a third person for use and is being lawfully used on such truck. (Sections 614-103 and 614-115, General Code, now Sections 4923.02 and 4923.08, Revised Code, construed and applied.)

Plaintiffs instituted this action in the Common Pleas Court of Mahoning County to recover $2,235 property damage to a truck owned by the plaintiff May, who is herein referred to as plaintiff. The damage involved was received in a collision on November 5, 1952, between plaintiff's truck and a truck of the defendant. The coplaintiff Aetna Insurance Company, which insured plaintiff against such damage under a $100 deductible policy, had paid to plaintiff all but $100 of the amount of the damages and, by reason of that payment, claimed to be subrogated to a part of plaintiff's alleged cause of action.

Plaintiff had no Public Utilities Commission of Ohio (P. U. C. O.) permit. For sometime prior to the collision, plaintiff had hauled coal for a P. U. C. O. permit holder named Mercure. When he did this he used the P. U. C. O. permit of Mercure. Plaintiff became sick several weeks before the collision and was unable to work and he entered into an oral agreement with a man named Kiddon with respect to the use of his truck. Under this agreement, plaintiff and Kiddon agreed that two-thirds of the gross earned with the truck should go to plaintiff, out of which plaintiff was to be charged for gasoline, repairs and incidental expenses for the truck, and the remaining one-third should go to Kiddon. The evidence indicated that plaintiff did not exercise any control over the operation of the truck by Kiddon.

At the time of the collision Kiddon was hauling coal with plaintiff's truck and using the P. U. C. O. permit belonging to Mercure. The coal was being hauled intrastate pursuant to a contract between Mercure and a mining company to haul it from a mine to a steel plant of another company.

The trial court found as a matter of law that, at the time of the collision, the relationship between plaintiff and Kiddon with respect to operation of the truck was such that Kiddon was an independent contractor; and the trial court therefore withdrew from the jury any question of contributory negligence of Kiddon, although the evidence rather clearly indicated that Kiddon had been guilty of negligence which had proximately contributed to the damages claimed.

The jury returned its verdict for plaintiffs for the full amount claimed. Judgment was rendered for plaintiffs on that verdict.

On appeal to the Court of Appeals that judgment was affirmed.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Carlyle & Carlyle, Youngstown, for appellant.

A. I. Goldman and Arseny A. Melnick, Youngstown, for appellees.

TAFT, Judge.

The question to be decided is whether the negligence of the driver of a truck, who is as to the owner of the truck an independent contractor, will be imputed to such owner merely because the operation of the truck at the time required use of a permit issued by the Public Utilities Commission of Ohio and notwithstanding that such required permit had been lawfully supplied by a third person for use and was being lawfully used on such truck. This court has held that, in such an instance, at least where negligence as distinguished from contributory negligence is in question, the negligence of the driver while acting within the scope of such third-person permit holder's business will be imputed to such permit holder, even if such driver is as to such permit holder an independent contractor. Duncan v. Evans, 134 Ohio St. 486, 17 N.E.2d 913. See Shaver v. Shirks Motor Express Corp., 163 Ohio St. 484, 127 N.E.2d 355; Thornberry v. Oyler Bros., Inc., 164 Ohio St. 395, 131 N.E.2d 383; Simon v. McCullough Transfer Co., Inc., 155 Ohio St. 104, 98 N.E.2d 19; Behner v. Industrial Commission, 154 Ohio St. 433, 96 N.E.2d 403.

In seeking an answer to the question to be decided in the instant case, it will be helpful to consider the reasons for the holdings in the foregoing cases.

Several of those cases involved a regulation of the Interstate Commerce Commission providing that a carrier, when using a vehicle of another in its operations under an Interstate Commerce Commission permit, must do so under an 'arrangement * * * of such a character that the carrier will have the right to direct and control the operation of the vehicle at all times and be fully responsible therefor in all respects, under all applicable provisions of law governing the duties and obligations of the carrier * * * to the public generally.' Thornberry v. Oyler, supra, 164 Ohio St. 398, 131 N.E.2d 385; Simon v. McCullough Transfer Co., supra, 155 Ohio St. 109, 110, 96 N.E.2d 19; Shaver v. Shirks Express Corp., supra, 163 Ohio St. 493, 494, 127 N.E.2d 355; Behner v. Industrial Commission, supra, 154 Ohio St. 438, 96 N.E.2d 403. In each of those cases, that regulation was given as the reason for imputing negligence of an independent contractor to the permit holder. No other reason for such a holding was suggested in those cases except by an occasional passing reference to Duncan v. Evans, supra, 134 Ohio St. 486, 17 N.E.2d 913, as reaching the same result without the help of such a regulation, and by certain statements in the opinion of Simon v. McCullough Transfer Co., supra, which will be hereinafter referred to. That regulation is not applicable in the instant case and our attention has been called to no applicable regulation of the Public Utilities Commission of Ohio.

In the annotation at 16 A.L.R.2d 960, it is said:

'It is, of course, a general rule of law that an employer is not liable for the torts of an independant contractor. There are, howerver, certain well recognized exceptions to this rule, two of which have been invoked frequently in considering liability in connection with the operation of commercial motor vehicles. One is that an employer cannot escape liability for tortious injuries to others through creation of the independent-contractor relationship if the work to be performed is inherently dangerous to others. The other is that where such an operation may be carried on only by permission given by public authority, the relationship cannot be created for the purpose of escaping the liability for harm to others which would otherwise attach.'

As to the first of these two 'exceptions,' it was advanced as a reason for the decision in the briefs in Healy v. Universal Carloading & Distributing Co., which was reported with Duncan v. Evans, supra, 134 Ohio St. 486, 17 N.E.2d 913; and it was also mentioned in the reasons advanced by the Court of Appeals for its decision in Duncan v. Evans, 60 Ohio App. 265, 274, 275, 20 N.E.2d 729. However, nothing is said about that exception in either the opinion 'by the court' or the dissenting opinion in Duncan v. Evans, supra, 134 Ohio St. 486, 17 N.E.2d 913. Hence, it was apparently not relied upon as a reason by this court in that case. Also, it was apparently questioned as a reason for such a decision in what was said in the opinion in Simon v. McCullough Transfer Co., supra, 155 Ohio St. 104, 113, 115, 98 N.E.2d 19. See Costello v. Smith, 2 Cir., 179 F.2d 715, 16 A.L.R.2d 954; Eckard v. Johnson, 235 N.C. 538, 70 S.E.2d 488, 491. Although outside Ohio it has apparently been recognized in combination with the second exception as a reason for such a decision, Venuto v. Robinson, 118 F.2d 679; Bates Motor Transport Lines, Inc., v. Mayer, 213 Ind. 664, 672, 14 N.E.2d 91, 94; Barry v. Keeler, 322 Mass. 114, 126, 76 N.E.2d 158, 164; Kemp v. Creston Transfer Co., D.C., 70 F.Supp. 521, 534 et seq.; Hodges v. Johnson, D.C., 52 F.Supp. 488, 490, 491, we do not believe it has heretofore been regarded by this court as a reason for decisions imputing negligence of an independent contractor-driver of a truck to someone else. If it had been generally so recognized, there would be some question as to the soundness of our recent decision in Thornberry v. Oyler, supra, 164 Ohio St. 395, 131 N.E.2d 383, and possibly even that in Shaver v. Shirks Motor Express Corp., supra, 163 Ohio St. 484, 127 N.E.2d 355. See 27 American Jurisprudence, 518, Section 39. Thus, in Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128, it was held that 'while an automobile is not a dangerous instrument per se, it may become such if operated by one who is unskilled in its use' and that liability of the owner may rest 'upon the combined negligence of the owner and driver; negligence * * * in intrusting the machine to an incompetent driver, and negligence * * * in its operation.' See also Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d Mt. Nebo Baptist Church v. Cleveland Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668; Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St. 467, 62 N.E.2d 339, 168 A.L.R. 1356. If the operation of a large tractor-trailer, such as was involved in the Thornberry case, were regarded as 'inherently dangerous to others' even if operated by one skilled in its use, then it would be at least doubtful whether Oyler should have been excused in that case from responsibility for damages resulting from the negligence of the driver to whom it entrusted the operation of its trailer. In any event, there was no contention in the instant case that the operation of plaintiff's truck was something that would be 'inherently dangerous...