Rodriguez v. Ager
| Decision Date | 10 January 1983 |
| Docket Number | No. 81-1261.,81-1261. |
| Citation | 705 F.2d 1229 |
| Parties | Donna RODRIGUEZ, Personal Representative of the Estate of Salvador J. Rodriguez, and Marianne Devich, Personal Representative of the Estate of Michelle Devich, Melissa Devich and Randy Rodriguez, Appellants, v. John Let AGER, David Ager and Sammons Trucking Company, Inc., a Montana corporation. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael G. Sawaya, Frye & Sawaya, P.C., Denver, Colo. (Richard B. Rose, Frye & Sawaya, P.C., Denver, Colo., with him on the brief), for appellants.
Richard R. Bostwick, Murane & Bostwick, Casper, Wyo. (David A. Scott, Murane & Bostwick, Casper, Wyo., with him on the brief), for appellees.
Before HOLLOWAY, DOYLE and SEYMOUR, Circuit Judges.
This case involves a collision of a semitractor-trailer truck with an automobile which was driven by Salvador Rodriquez. Rodriguez and three of his children and those of Mrs. Devitch, his wife, were killed. It was a head-on collision which resulted from an effort on the part of the truck driver to pass a vehicle on his side of the road. It was going in an opposite direction from Rodriguez' vehicle and as the truck turned out to pass the car on its right it collided head-on with the Rodriguez car, destroying the vehicle and all of its passengers.
The main issue in the case is whether the court erred in not ruling that Sammons Trucking Company, the lessee-carrier of the truck was responsible legally for the injuries suffered. Sammons escaped being held liable in the trial court.
Mrs. Devitch, the wife of Salvador Rodriguez, obtained an award from the jury of $65,036.90 as against the owner and driver of the truck for the death of her husband and the four surviving children, each of whom received an award from the jury of $5,000 for the death of their father. Mrs. Devitch recovered only the funeral expenses for the loss of her three children. No award was made to the surviving children for the loss of their brothers and sisters. Michael de Guzman, the child who survived but was injured in the accident, recovered a judgment in the amount of $11,300. The amounts listed above do not necessarily represent the amounts that have been or will be received by the parties. The named defendants are David Ager, the owner of the equipment, the Sammons Trucking Company, Inc., a Montana corporation, and John Let Ager, the driver of the vehicle.
David Ager had leased the equipment to the Sammons Trucking Company, Inc. At the time in question, the lease was on the verge of being terminated, but at the time of the accident which took place on December 16, 1978 the lease had not been cancelled and the insignia of Sammons, which is essential and must be carried at all times, was on the truck and had not been returned to Sammons Trucking Company. John Ager was driving the truck from Belle Fourche, South Dakota to Casper, Wyoming for the purpose of picking up and hauling a load of wool. The arrangement for the trip had been made the day before by his brother David, the Ager who was then the owner of the truck. The collision occurred near Lusk, Wyoming. The patrolman who investigated it testified at the trial that the defendant's truck crossed the center line of the highway into the decedent's oncoming lane of traffic. This movement to the wrong side of the road produced the accident in which Salvador Rodriguez, the driver, and the three children, Michelle and Melissa Devitch, and Randy Rodriguez, were killed.
The lease was entered into on August 3, 1977. Sammons, a motor carrier licensed by the Interstate Commerce Commission and subject to ICC regulations, was the lessee. This lease allowed David Ager to operate his truck as a carrier in interstate commerce. Sammons was also paid a percentage of the revenue received when a haul was made with the truck. The parties stipulated that at the time of the accident the tractor being driven by John Ager had Sammons' insignia on its side, including decals of Sammons plus the identifying docket number assigned to Sammons by the ICC.
In the latter part of November or early December of 1978 David Ager had notified Sammons that he wished to terminate the lease. On or about December 6th Sammons sent Ager the contract to sign on the occasion of the termination. The written termination form was signed by Ager on December 11, 1978 and later forwarded to Sammons. It was after the accident though that Ager sent all of the issuances, the authorities and the license plate and the contract back to Sammons. One reason for the termination was that David planned to sell the truck to his brother John who was the driver of it at the time of the accident.
The main thrust of this appeal, as we have indicated, is whether Sammons Trucking Company, Inc., an organization which had been licensed by the Interstate Commerce Commission and thus was governed by its regulations, is responsible as a matter of law for the accident even though the driver was not on a mission of Sammons and even though Sammons was unaware of the fact that the vehicle was being used in the way that it was.
Other issues are whether the damages awarded by the jury were so inadequate, particularly as to the deceased children, considering that only the funeral expenses were awarded, and were influenced by passion and prejudice or some other invalid element which may have invaded the jury's deliberations. A further issue is whether the trial court erred when instructing the jury as to the elements of comparative negligence considered that the defense had not raised it in the pleadings or in the pretrial order. The jury found that Rodriguez was 25% at fault, whereas the truck driver was held to be 75% at fault. The appellant's contention on this issue is that the case is controlled by the ICC regulations which were in effect on the date of the accident. See Section 1057 of Title 49 of the Code of Federal Regulations.
There is no dispute about the nature of the project that Ager was pursuing at the time of the accident. We have mentioned that it was not on behalf of Sammons; rather it was all arranged by John's brother, David, who was then the owner of the truck and hence it cannot be said that John was driving the truck as an agent of Sammons. If this liability exists at all it is by virtue of a regulation of the ICC. This is what has been referred to as Section 1057.4 of the Code of Federal Regulations. It was promulgated by the ICC some years ago and apparently the promulgation was to correct a problem which existed at the time with respect to regulation of leasing in interstate transportation by truck. For example, one of the provisions of the regulations is that when possession of the equipment is taken by the authorized carrier or the regular employer or agent to do the authorized act for it, said carrier, employee or agent shall give to the owner of the equipment, or the owner's employee, a receipt specifically identifying the equipment and stating the date and the time of day possession thereof is taken. Likewise when the possession by the authorized carrier ends, it or its agent or employee shall obtain from the owner of the equipment, or its regular employee or agent duly authorized to act for it, a receipt specifically identifying the equipment and stating therein the date and time of day possession thereof is taken. Another section which is sub-section (d)(1) provides for identification being removed. It provides as follows:
(1) Identification to be removed when lease terminated. The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment.
There is one other provision which is of particular importance in this case and that is 49 C.F.R. § 1057.4(a)4 which provides:
Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement.
In this case the jury found and concluded that the lease remained in effect at the time of the accident. Notwithstanding that the trial court held that the trucking company could be held responsible only if respondeat superior or vicarious liability, strictly speaking, was present and the jury was so instructed. The main question which we consider is whether as a matter of law this ruling was wrong under the regulations. Does the regulation provide that Section .4(a)4 result in the lessee of the equipment being absolutely responsible as argued by the appellant. Appellant's position is that the lessee completely assumes responsibility for the equipment and assumes also responsibility for injuries inflicted. Inasmuch as the lease was still in effect the trucking company, it is contended, is responsible until such time as the lease was terminated and after the removal of the insignia of Sammons Trucking Company and delivery of the insignia into the hands of Sammons Trucking Company. At the time of the collision that produced the deaths the Sammons insignia, the authority to drive the truck on the highways, remained on the truck.
Appellants rely completely on the ICC regulations which impose responsibility on the lessee of the truck. These regulations are said to have been promulgated in order to establish responsibility for protection of the public in the lessee of the equipment. The initial important provision is that which requires (1) surrender of the insignia of the lessee and the delivery of a receipt from the owner-lessor showing that the lessor is retaking exclusive possession of the leased equipment and (2) removal from the vehicle of any legend showing that the lessee is the operating carrier that is...
To continue reading
Request your trial
-
Paul v. Bogle
...v. Westmoreland, 727 F.2d 494 (C.A.5, 1984); Schell v. Navajo Freight Lines, Inc., 693 P.2d 382, 384 (Colo.App., 1984); Rodriguez v. Ager, 705 F.2d 1229 (C.A. 10, 1983); Carolina Casualty Ins. Co. v. Ins. Co. of North America, 595 F.2d 128, 137, n. 29 (C.A. 3, 1979); Kreider Truck Service, ......
-
U.S. Fidelity & Guar. Co. v. U.S. Fire Ins. Co.
...Maple, 491 N.E.2d 1006, 1009 (Ind.App.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762 (1987). See also Rodriguez v. Ager, 705 F.2d 1229 (10th Cir.1983); Mellon Nat'l Bank & Trust Co. v. Sophie Lines, 289 F.2d 473 (3rd Cir.1961). But see Wilcox v. Transamerican Freight Line......
-
Empire Fire and Marine Ins. Co. v. Liberty Mut. Ins. Co.
... ... See, e.g., Hartford Ins. Co. v. Occidental Fire & Cas. Co., 908 F.2d at 237; Rodriguez v. Ager, 705 F.2d 1229 ... Page 113 ... (10th Cir.1983); Mellon Nat'l Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir.1961); ... ...
-
Pouliot v. Paul Arpin Van Lines, Inc.
...Johnson v. S.O.S. Transport, Inc., 926 F.2d 516 (6th Cir.1991); Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984); Rodriguez v. Ager, 705 F.2d 1229 (10th Cir.1983); White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir.1979); Wellman v. Liberty Mutual Ins. Co., 496 F.2d 131 (8th Cir.1974); Pr......
-
Liability of the commercial driver: negligent hiring meets the dangerous instrumentality doctrine.
...289 F.2d 473 (3d Cir. 1961). (31) Judy, 844 F.2d at 1496; Simmons v. King, 478 F.2d 857 (5th Cir. 1973). (32) Accord, Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. (33) Judy, 844 F.2d at 1496. Walter G. Latimer is a board-certified civil trial lawyer with Marlow, Connell, Valerius, Abrams, Ad......