Zimmerman v. Mathews Trucking Corp.

• Decision Date: 04 June 1952
• Citation: 105 F. Supp. 57
• Parties: ZIMMERMAN et al. v. MATHEWS TRUCKING CORP.
• Court: U.S. District Court — Western District of Arkansas

105 F. Supp. 57

ZIMMERMAN et al. v. MATHEWS TRUCKING CORP.

Civ. 472.

United States District Court W. D. Arkansas, Hot Springs Division.

June 4, 1952.

G. W. Lookadoo, John H. Lookadoo, Arkadelphia, Ark., for plaintiff.

J. W. Barron, Little Rock, Ark., Eugene A. Matthews, Hot Springs, Ark., for defendant.

JOHN E. MILLER, District Judge.

Defendant has filed a motion under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. for judgment in accordance with its motion for a directed verdict made at the close of the evidence in the trial of the above named case, and in the alternative for a new trial. The respective parties have filed briefs on the motion, and the court has considered the pleadings, the evidence and the briefs in support of and in opposition to the motion.

This cause of action arose out of a collision between an automobile driven by the plaintiff and occupied by his wife, who was killed in the collision, and an unattached tractor, commonly used to pull large trailers in the transportation of merchandise, owned by Marion Coscia and being driven by Jack Anderson. Coscia was riding in the tractor at the time of the collision. The defendant admitted that the collision and the resulting injuries to plaintiff and the death of his wife were proximately caused by the negligence of Jack Anderson, an employee of Coscia, but defended the claims asserted by plaintiff on the ground that it was in no wise legally responsible or liable for the acts of the said Anderson and Coscia.

An exhaustive review of the evidence, a large portion of which was in the form of depositions, is not necessary. However, viewed in the light most favorable to the plaintiff, the following facts appear:

The defendant was engaged in the business of hauling freight in interstate commerce and in furtherance of that business operated a terminal at Memphis, Tennessee. It followed the practice of entering into various lease arrangements with truckers who owned their own equipment. In the past it has entered into so-called "spot lease" agreements with Marion Coscia for the transportation by the latter of a single load. Coscia, as well as other truckers similarly situated, operated independently and hauled freight for various transportation concerns. The customary freight division provided for in the "form" spot lease was 70% to the trucker, such as Coscia, and 30% for the transportation company, although Coscia testified that in the past he had received as much as 80% on special occasions. The lease haulers, such as Coscia, did not have Interstate Commerce Commission certificates, and while they were on trips under lease with the defendant they were furnished the certificate that had been issued to defendant. As to the particular transaction herein involved, it is admitted that some time prior to March 16, 1951, Coscia hauled a load for another company into the State of Texas and because of some infringement of the laws of that State certain officials thereof attached and took Coscia's trailer into custody. The testimony is legally sufficient to justify a finding that on March 16, 1951, Coscia entered into an oral agreement with Lee Staley, terminal manager of the defendant at Memphis, under which Coscia was to go to Texas, pick up his trailer, return with it to Memphis, and there load and transport to some point in New Jersey or New York a shipment of oleo, for which transportation Coscia was to receive 75% of the freight instead of the usual 70%, the additional 5% going to defray his expenses to Texas to obtain his trailer. The oleo was to be held by defendant at Memphis pending Coscia's return on Sunday, March 18, and representatives of defendant were to be present at that time to load the oleo onto Coscia's trailer. Pursuant thereto, Coscia and Jack Anderson, whom he had hired to make the trip with him, departed from Memphis about 5:00 or 6:00 p. m., Friday, March 16, for Texas. It is undisputed that the defendant gave no directions to Coscia as to the manner of making the trip to Texas, and Coscia was to pay all expenses, including the wage of Anderson, his driver. While en route the collision out of which the lawsuit arose occurred.

The defendant denied the making of any such oral agreement, and offered evidence which, if believed by the jury, would have supported a verdict in its behalf. However, the jury, under the court's instructions, resolved the above factual issues in favor of the plaintiff, and the court cannot say that there is no substantial evidence to support the jury's finding that such an agreement, as outlined above, did in fact exist. The court had serious misgivings as to the legal consequences of such an agreement at the time of the trial and so advised the parties, and the motion now before the court has given it an opportunity for further deliberation and study of the legal principles that must be applied to the testimony viewed most favorably for the plaintiff.

At the trial the plaintiff contended that the relationship of master and servant or principal and agent existed between defendant and Coscia and Anderson at the time of the collision. The court rejected this contention at the trial, being of the opinion that if any relationship existed, it, at best, was that of principal and independent contractor. The court still entertains that opinion, and while the plaintiff in his brief in opposition to the motion for judgment notwithstanding the verdict does not expressly abandon his former contention that the relationship between Coscia and the defendant was that of master and servant he does vigorously contend that Coscia was operating under the franchise of the defendant and that, therefore, the defendant is liable for the negligence of Coscia and his employee. The facts, under the most favorable view to plaintiff fail to present a question of fact for the jury on the contention that the relationship of master and servant existed. It is obvious that at most the only control or the right thereof retained by the defendant in this case was as to the result, with the means and methods for the accomplishment of that result being left entirely to Coscia and his employee. For Arkansas cases see among others: Moaten v. Columbia Cotton Oil Company, 193 Ark. 97, 97 S.W.2d 629; Arkansas Fuel Oil Co. v. Scaletta, 200 Ark. 645, 140 S.W. 2d 684; Rice v. Sheppard, 205 Ark. 193, 168 S.W.2d 198; Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341, 8 A.L.R.2d 261. And, it has been universally held that a spot lease hauler is an independent contractor. See: Hodges v. Johnson, D.C.W.D.Va., 52 F.Supp. 488; War Emergency Co-op. Ass'n v. Widenhouse, 4 Cir., 169 F.2d 403; Costello v. Smith, 2 Cir., 179 F.2d 715, 16 A.L.R.2d 954. While Coscia had not in fact executed such a lease at the time of the collision, one was to be executed if and when he returned from Texas with his trailer.

It follows from this conclusion, that if defendant is to be held liable it must be under an exception to the usual rule of nonliability for the acts of an independent contractor. One such exception exists in the case of a person or corporation operating under a public franchise, whereby the duty owed the public by one so operating cannot be delegated to an independent contractor so as to relieve the former of liability to third persons for the negligent acts of the latter. As expressed in Costello v. Smith, supra, 179 F.2d at page 717:

"This is on the principle that one who can lawfully operate only under a public franchise cannot escape liability by engaging an independent contractor to carry on the activity for him. Restatement, Torts, § 428. It is an exception to the independent contractor rule."

Restatement of Torts, Sec. 428 provides:

"An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity."

And, as stated in 57 C.J.S., Master and Servant, § 591, p. 368:

"An individual or a corporation cannot evade liability for negligence by delegating performance of work to an independent contractor where such individual or corporation is carrying on an activity, involving danger to others, under a license or franchise granted by public authority and subject to certain obligations or liabilities imposed by public authority."

As above stated, the court, with some misgiving, submitted the case to the jury under this principle, and in addition to the usual instructions on burden of proof, credibility of witnesses, and damages, instructed the jury as set forth in the footnote.¹ Under the instructions, the jury found the issues in favor of the plaintiff and returned a verdict fixing the damages of plaintiff, individually, at $23,915 and as husband and next of kin of his deceased wife at $25,600.

Defendant moved for a directed verdict at the close of the plaintiff's evidence and again at the close of all the evidence, which motions were overruled by the court. As grounds for its motion for a directed verdict at the close of the evidence, the defendant asserted (1) that the undisputed evidence showed Cosca was not an agent, servant or employee of defendant, but rather was an independent contractor, (2) that the undisputed evidence showed that there was no contract between the defendant and Coscia which would give rise to any relationship upon the basis of which defendant would be liable for the negligence of Coscia or his employee, Jack Anderson, and (3) that plaintiff has failed to discharge his burden to show such a relationship between Coscia and defendant as would charge the latter with the negligence of the former, and it is undisputed that the alleged agreement in question was completely beyond the scope of the authority of the defendant's agents.

In its motion...