Noble v. Roadway Exp., Inc.

• Decision Date: 16 October 1986
• Docket Number: Docket No. 85642
• Citation: 394 N.W.2d 128,153 Mich.App. 12
• Parties: Leo P. NOBLE and Carolyn Noble, Plaintiffs-Appellants, Cross-Appellees, v. ROADWAY EXPRESS, INC. and Fred Hartel, Defendants-Appellees, Cross-Appellants, and Tokheim Corporation and St. Joseph Paper Company, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 128

394 N.W.2d 128

153 Mich.App. 12

Leo P. NOBLE and Carolyn Noble, Plaintiffs-Appellants, Cross-Appellees, v.ROADWAY EXPRESS, INC. and Fred Hartel, Defendants-AppelleesCross-Appellants and Tokheim Corporation and St. Joseph Paper Company, Defendants.

Docket No. 85642.

Court of Appeals of Michigan.

Submitted April 17, 1986.

Decided July 7, 1986.

Released for Publication Oct. 16, 1986.

Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt, Detroit, for plaintiffs-appellants, cross-appellees.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. by Robert D. Brignall, Detroit, for defendants-appellees, cross-appellants.

Before KELLY, P.J., and SHEPHERD and SIMON^*, JJ.

SHEPHERD, Judge.

This is an appeal and cross-appeal from an order of summary judgment under GCR 1963, 117.2(3) in favor of defendantsFred Hartel and Roadway Express, Inc.(hereinafter defendants).The plaintiffs' complaint stated one count of negligence against each of the defendants.We reverse the summary judgment order and remand for further proceedings.

On May 20, 1983, defendant Hartel delivered six gasoline pumps to Eastside Marathon.The delivery was made in the course of his employment with defendant Roadway Express.Each of the pumps weighed in excess of 500 pounds.Roadway's truck was apparently not equipped with a liftgate and Eastside Marathon had no facilities for lifting the load out of the truck.The pumps were therefore slid over the back edge of the truck bed to plaintiffLeo Noble(hereinafter plaintiff) and other waiting employees of Eastside Marathon.

According to plaintiff's deposition, Hartel broke the bottom metal band on the carton containing one of the pumps as he slid the container off the back of the truck.When the pump inside then began to slide out of the cardboard container, it was pushed back up onto the bed of the truck, where it was turned around.The pump was then unloaded upside down.According to plaintiff, Hartel gave him a two-wheeled dolly and instructed him to move the upside-down pump so that the last pump could be unloaded.The upside-down pump was top-heavy and when plaintiff attempted to move it, it fell on him, causing serious injury to his right ankle.

Defendant Hartel's deposition testimony contradicted the version of events given by plaintiff in certain respects.Hartel testified that he assisted the Marathon station employees in unloading the containers.He believed that the packaging band was broken before he attempted to unload the pump and that two gas station employees had flipped the pump over after it was unloaded so that it was right-side up when plaintiff attempted to move it.

Plaintiffs filed suit on September 7, 1983.On February 21, 1985, defendants Hartel and Roadway moved for summary judgment.The defendants asserted two bases for summary judgment: (1) that under applicable Interstate Commerce Commission(ICC) regulations, the defendants had no duty to unload the freight and, under Rockwell v. Grand Trunk W.R. Co., 264 Mich. 626, 250 N.W. 515(1933), based upon the ICC regulations, Hartel therefore became the loaned servant of the plaintiff's employer; and (2) that the plaintiff's injury was not proximately caused by any negligent act on the part of the defendants.The trial court granted summary judgment, ruling in favor of the defendants on the first basis, but against the defendants on the second.The plaintiffs appealed from the first aspect of the trial court's ruling.The defendants cross-appealed on the second.

I

The defendants essentially argue that their liability for any negligence on the part of Hartel was proscribed by contractual terms imposed under the ICC regulations.The defendants' argument suggests that the policy objectives of the ICC require that no duty on their part be found in the instant case.The Interstate Commerce Commission is given rule-making authority over the rates, classifications, rules and practices of common carriers.49 U.S.C. Sec. 10702.The regulation at issue provides:

"When freight in a single container, or freight secured to pallets, platforms or lift truck skids, or freight in any other authorized form of shipment (1) weighs 500 pounds or more per package or piece, or (2) if the greatest dimension exceeds 8 feet or the greatest and intermediate dimension each exceeds 4 feet, loading shall be performed by the consignor and unloading shall be performed by the consignee.On request of consignor or consignee, the truck driver will assist the consignor or the consignee in loading or unloading."National Motor Freight Classification Item568(a).

As noted by the defendants, the tariffs of the ICC become part of the contract between the carrier and the receiver (consignee).Watson-Higgins Milling Co. v. Pere Marquette R. Co., 328 Mich. 5, 8-9, 43 N.W.2d 43(1950).On the other hand, the parties agree that, except as otherwise presented in the Interstate Commerce Act, the remedies therein are in addition to those provided under state law.49 U.S.C. Sec. 10103.

Against that statutory background, the Michigan Supreme Court decided Rockwell, supra.The Rockwell plaintiff was injured while assisting an employee of the defendant railroad in unloading a consignment of I-beams from a flatcar.Rockwell, supra, 264 Mich. pp. 627-628, 250 N.W. 515.The jury found that the employee of the railroad was negligent in his operation of a crane and awarded damages to the plaintiff.The Rockwell majority reversed, noting that ICC regulations required the plaintiff's employer, as consignee or owner, to unload the I-beams.The Court reasoned:

"Thus, in the instant case, the contract between the shipper and carrier places the obligation of unloading the carload lot upon the shipper or consignee.Had the parties contracted that the carrier without additional charge should unload the shipment, it would have been a violation of interstate commerce regulations and subjected them to the penalty provided.Thus, as a matter of law, as well as a matter of contract, in this interstate shipment the duty of unloading devolved solely upon the consignee.When plaintiff contracted to truck these I-beams from the place of delivery by the carrier to the bridge site, he stepped into the place of the consignee, who was charged with the duty of unloading.At his option he might or might not take advantage of the conveniences afforded by the carrier in unloading the shipment.While in no way obligated to do so, in the instant casethe defendant had provided at Flint a Gantric crane, the use of which, together with an operator, was tendered to shippers to aid them in unloading heavy articles.To hold that the defendant railroad company in so doing was discharging a part of its duty or its contract as a carrier would be to hold that it was acting in violation of interstate commerce regulations.The record in this case will not sustain a conclusion that the carrier contracted to unload this shipment.Instead, in the face of the interstate regulation, the only justifiable conclusion is that the defendant carrier loaned this unloading device and its employee in operating the same to the consignee, in whose place plaintiff was acting in receiving the shipment."Rockwell, supra, pp 637-638, 250 N.W. 515.

Rockwell precluded vicarious liability on the part of the defendant railroad based on the applicable ICC regulation.However, the regulation at issue in Rockwell was significantly different than the regulation applicable in the present case.The applicable ICC regulation in Rockwell provided:

"Owners are required to load into or on cars freight for forwarding by rail carriers and to unload from cars freight received by rail carriers carried at carload ratings."Id., 636, 250 N.W. 515.

In the present case, as set forth in full above, the applicable regulation also provides for unloading by the consignee but includes the following requirement that the carrier's employee assist in the unloading:

"On request of consignor or consignee, the truck driver will...