Stickel v. Erie Motor Freight, Inc.

• Decision Date: 18 May 1936
• Citation: 54 Ohio App. 74,6 N.E.2d 15
• Parties: STICKEL v. ERIE MOTOR FREIGHT, Inc.
• Court: Ohio Court of Appeals

6 N.E.2d 15

54 Ohio App. 74

STICKEL v. ERIE MOTOR FREIGHT, Inc.

Court of Appeals of Ohio, Sixth District, Lucas.

May 18, 1936

Syllabus by the Court .

An incorporated motor transportation company cannot, by delegating to a private truck owner and operator who is otherwise an independent contractor the exercise of its corporate franchise as a common carrier and the special privilege to use the public highways, granted to such company by the Public Utilities Commission, relieve itself of liability for injuries to those who are lawfully on the highways, which injuries are the result of the negligent exercise of such special privilege on the part of such private truck owner and operator.

Fraser, Effler, Shumaker & Winn, of Toledo, for appellant.

Denman, Miller & Beatty and Roi O. Becker, all of Toledo, for appellee.

LLOYD Judge.

In the petition filed in the Court of Common pleas the appellant Mattie Stickel, alleges that the appellee, Erie Motor Freight, Inc., is a public utility corporation organized and existing under and by virtue of the laws of Michigan, engaged in the business of hauling and transporting in interstate commerce merchandise and freight, by means of trucks and trailers operated upon the public highways of Ohio and other states, and that it is qualified to do business in Ohio. The facts so alleged are admitted in the answer of the appellee.

Appellant sought to recover of appellee $50,000 for personal injuries alleged to have been proximately caused by the negligence of appellee in operating a truck and trailer driven by one Dewey Shappell, its alleged agent, servant, and employee acting within the scope of his employment. These facts are denied.

The trial in the court of common pleas resulted in a verdict for appellant in the sum of $30,000. Motion for judgment notwithstanding the verdict, as is now permitted by section 11601, General Code, as amended September 2, 1935 (116 Ohio Laws, p. 413), was thereupon filed by appellee, as well as a motion for a new trial. The trial court finding as a matter of law that Shappell was an independent contractor, the motion for judgment was granted and the motion for a new trial overruled. From this judgment appellant appeals, stating in his brief that the sole question for consideration is:

‘ Was Dewey Shappell, the driver of the truck and trailer, an agent of the defendant (appellee) or was he an independent contractor?'

The only evidence in the record as to the relationship existing between these two was the testimony of Louis Hoffman, secretary and treasurer of appellee, and that of the driver Shappell, in conjunction with certain exhibits. The testimony of Hoffman is not as frankly helpful as we would expect to find it, being not unlike the testimony of a witness appearing in a bill of exceptions examined by this court not so very long ago, who, in answer to a question on cross-examination, said: ‘ I ain't got no memory for what you want to know.'

Hoffman testified that he and two brothers constituted the corporation; that he did not know whether the company owned any trucks or trailers on August 19, 1934, the date of the injury of which appellant complains; did not know that the name of the company appeared on both the truck and trailer of Shappell, or that the Ohio Public Utilities Commission certificate number issued to his company appeared thereon; in fact, he seemed to have no particular knowledge of anything concerning the conduct of the business of the company except that Shappell owned the truck and trailer operated by him, and received $4 per ton of each load of freight hauled, and that the appellee, a corporation organized under the laws of Michigan, had been in business in Ohio for three and a half or four years and had a certificate from the Public Utilities Commission thereof ‘ to use the public highways.'

Shappell testified in substance that he had been hauling freight for the appellee for ‘ about a year and a half’ and that during that time he owned the equipment used by him for that purpose; that by direction of Louis Hoffman the inscription, ‘ Erie Motor Freight, Inc.,’ was placed on both sides of his truck and was also painted on both sides of the trailer used by him on August 19, 1934, and that as so directed there was also ‘ painted on both sides of the tractor and both sides of the trailer,’ immediately under the name of appellee, ‘ PUCO No. 3688,’ the certificate number granted to appellee by the Ohio Public Utilities Commission, as was also appellee's Public Service Commission number of Indiana; and the tonnage capacity of the truck and trailer.

Shappell himself had not applied for and had never had any permit or certificate from the Public Utilities Commission, nor had he any personal liability or cargo insurance. On Saturday, August 18, he received from appellee at Chicago a 16,000-pound load of chemicals which Louis Hoffman told him ‘ to put on,’ together with copies of waybills or bills of lading therefor, prepared on printed forms of appellee, describing the cargo and naming the consignor, consignee, and places of delivery. He also signed receipts describing its character and stating where and to whom it was to be delivered. He says that he had nothing to do with the collection of the freight charges; and that after their collection by appellee he received from it 65 per cent. thereof as his compensation.

He says a description of his truck and trailer was sent to the Public Utilities Commission at Columbus and that his name was included in the list of ‘ haulers' for appellee, furnished to the commission.

The foregoing is substantially all of the evidence...