EDWARD A. COX, PLAINTIFF-APPELLANT, v. BOND TRANSPORTATION, INC., DEFENDANT-RESPONDENT. MICHAEL F. MURPHY, BY HIS GUARDIAN AD LITEM, IRIS R. MURPHY AND DENNIS MURPHY, PLAINTIFFS-APPELLANTS, v. BOND TRANSPORTATION, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
Argued November 4, 1968—Decided January 27, 1969
53 N.J. 186
Mr. Carroll A. Morley argued the cause for respondent (Mr. Carroll A. Morley, of counsel; Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
The opinion of the court was delivered by
FRANCIS, J. In the consolidated motor vehicle negligence actions which are the subject of this appeal, plaintiffs Cox and Murphy recovered substantial personal injury verdicts against defendants Bond Transportation, Inc. and Manuel McCaskill. Bond‘s subsequent appeal to the Appellate Division resulted in a reversal and a remand for entry of judgments in its favor. 99 N. J. Super. 335 (App. Div. 1968). McCaskill did not appeal. We granted certification on plaintiffs’ petition. 51 N. J. 571 (1968).
McCaskill was the owner and operator of the tractor involved in the collision which resulted in these damage actions. The basic issue is whether by reason of the Inter
The situation out of which these claims arose is unusual. For many years prior to January 22, 1965, defendant Bond had been engaged in the intrastate and interstate transportation of oil. Its principal place of business was in Woodbridge, New Jersey. It held an Interstate Commerce Commission Franchise as an interstate carrier, the certificate number being I. C. C. 15727. Bond had a number of tractors and tank trailers of its own which were used in the ordinary operation of its business; all had the company name and I.C.C. number painted on them. In the busy season, i. e., in advance of and during the cold weather, additional tractors were hired from their owners to assist in the transportation of oil by hauling Bond tank trailers. Such owners usually drove the vehicles personally. They are described in the record as lease-operators (of which more later). The company furnished all of them with a metal decal bearing the Bond name and I.C.C. number which decal was fastened to the side of the tractor. According to Daniel Harrison, Vice-President and part-owner of Bond, the Interstate Commerce Commission regulations required the name of the lessee and the decal to be placed on the rented tractors. Five to seven such lease-operators had been so engaged by Bond for a number of years and were working in that capacity at the time of the accident involved here. These operators delivered their loads during the day to the places designated by Bond‘s dispatcher. On returning to the Bond yard or terminal at the end of the day‘s work, they would be given their assignment for the next day by the dispatcher or they would receive it from him by telephone later in the evening.
After February 1964, McCaskill worked sporadically for Bond until November 1964. In the summer of 1964, except for a few occasions in July, when Bond called him, he sought work from other companies. From December 7 until January 22, 1965 he hauled fairly regularly and exclusively for Bond.
McCaskill lived in Long Branch, N. J., and the Bond terminal was at Woodbridge, N. J. His work day began at the terminal at 4:00 or 5:00 A. M., and it was necessary for him to be there at that time. Like the other lease-operators, on return to the terminal at the end of the day he would receive the next morning‘s assignment if it had been decided upon at that time; if not, it would be given to him over the telephone later in the evening by the dispatcher. This meant, of course, that McCaskill would hold himself and his tractor available to respond to the assignment by appearing at the terminal between 4:00 and 5:00 A. M. the following morning. Inferably also, on his version of the agreement with Bond, he could not seek other work until after he received the evening message that his services would
Harrison described McCaskill as a lease-operator and their relationship as arising out of an oral lease. He regarded the connection between them as a loose one, a seasonal one, on a day-to-day basis whenever Bond needed McCaskill‘s services. He said that the latter was free to work for anyone else at any time and was under no obligation to hold himself available for Bond.
The credibility of Harrison‘s testimony on some aspects of the arrangement between his company and McCaskill was open to serious question. Obviously the jury decided the issue against him. Harrison was called first as a plaintiff‘s witness and his direct, cross and redirect examination covers 48 pages of the record; he was called later as a defense witness and the direct, cross and up to the last question on redirect examination takes up 47 pages of the record. This last question, a most leading one, put by his company‘s attorney was:
“Q. Isn‘t that also a fact sir, that when you, Mr. Harrison, on behalf of Bond Transportation hired Mr. McCaskill on this leased operation, that the agreement was that he was to haul strictly intrastate, within the state of New Jersey when he hauled for Bond. Is that correct? A. Yes.”
McCaskill agreed that it was necessary to have a legend on the door of his tractor showing the name of the company for which he was operating and its I. C. C. authorization number, and further, that Bond required him to have it there. He said, however, that no metal decal was available for his truck at the time. Consequently the employee in charge of Bond‘s garage gave him a cardboard and a company stencil to prepare his own sign. He did so and placed it on his tractor. It read: “Bond Transportation, Woodbridge, N. J., I. C. C. 15727” in letters of substantial size. It remained attached at all times thereafter, even on the occasions during the winter season when he drove the tractor between the terminal and his home. Harrison knew this and never told him to remove it. There is no doubt that it was there when the accident in question happened. Moreover, the tractor was taken back to the Bond terminal from the scene
We do not regard of major significance the conflict in the testimony of McCaskill and Harrison as to whether the tractor at all times bore the Bond metal decal as asserted by Harrison, or the cardboard sign described by McCaskill, or whether it bore both decal and sign, as the jury could have found. The legal effect of decal and sign is substantially the same.
Harrison testified also that his company subjected the equipment of the lease-operators to the same safety inspection rule as was applied to its own equipment. In addition, he considered that the lease-operators, such as McCaskill, were subject to the same company supervision while they were on the road as were the regular employee-operators.
On January 22, 1965, at the customary early morning hour, McCaskill drove from his Long Branch home to the Woodbridge terminal in his light pick-up truck. His tractor bearing the Bond sign had been left there at the end of the previous day‘s work. He hooked the tractor to the tank-trailer and transported four or five loads of oil from the Paragon Oil Company in Newark, N. J. to a Bond customer in Whippany, N. J. On completion of his assignment he returned to the terminal at Woodbridge. His pick-up truck would not start so he decided to leave it there and drive home and back to the terminal in the tractor. No one suggests that his seasonal work for Bond had ended, or that the decal was removed or ordered removed from the tractor before McCaskill drove out of the yard. While moving south on Route 35 he became involved in a collision with vehicles of the plaintiffs Cox and Murphy.
Subsequently Cox and Murphy brought this action against McCaskill and Bond Transportation, Inc. The theory of the action was twofold: (1) Bond was liable for McCaskill‘s negligence under the common-law respondeat superior doctrine; (2) by reason of the Interstate Commerce Commission regulations McCaskill, as a lease-operator, was operating
“Do you find that at the time of the accident Manuel McCaskill was operating his tractor in carrying on the activity of Bond Transportation Company?”
On returning verdicts for the plaintiffs, the jury answered the question in the affirmative. As indicated hereafter this answer signified a finding by the jury that McCaskill had been engaged to operate in intrastate and interstate commerce, had been qualified by Bond to so operate, did in fact drive in interstate commerce, and at the time of the accident in driving the tractor home he was engaging in an activity which was at least in part for the benefit of Bond. The resulting judgments against Bond were reversed on appeal on the ground that McCaskill was not operating his tractor in interstate commerce at the time of the accident and therefore Bond could not be deemed to be in possession and control of it within the meaning of the Interstate Commerce
I
In 1935 Congress enacted the Motor Carrier Act, now Part II of the Interstate Commerce Act,
“(1) * * * requiring that any such lease, contract, or other arrangement shall be in writing and be signed by the parties thereto, shall specify the period during which it is to be in effect, and shall specify the compensation to be paid by the motor carrier, and requiring that during the entire period of any such lease, contract, or other arrangement a copy thereof shall be carried in each motor vehicle covered thereby; and
(2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.” (Emphasis added.)
Pursuant to this authority the Commission adopted regulations governing the leasing of owner-driven tractors for use in the business of franchised carriers engaged in interstate transportation.
Another subsection of the rule of considerable significance in the present case deals with the matter of identification of the leased equipment.
The validity of these regulations, substantially in their present form, and specifically of the requirement of a written 30-day lease when a certificated carrier leases equipment, such as a tractor, for use in its authorized transportation, was sustained by the United States Supreme Court in American Trucking Assos. v. United States, supra.
After the American Trucking decision the attack on the rule continued and further hearings were held by the Commission. They resulted in the reaffirmance of the basic regulation, although some exceptions were approved (not material here) probably as the result of criticisms voiced in the dissenting opinion of two members of the Court. In its 1950 and 1956 reports, quoted in Christian v. United States, supra, 152 F. Supp., at p. 567, the Commission said:
“The salutary objectives of that rule we think bear repeating. They are to insure responsibility for, and control over, the leased equipment by the lessee carrier, when the equipment is operated by the owner or employees of the owner. These are basic requirements that are inherent in the relation of the for-hire carrier to the public. When they are lacking, the chaotic conditions that preceded enactment of the Motor Carrier Act, 1935 inevitably ensue.”
and:
“It is clear that the hard core of the problem confronting the Commission * * * has been the owner-operator trip lease and its attendant evils, such as widespread indifference to carrier responsibility, to safety of operations, and to the scope of carrier operating authority.”
There can be no doubt that the Commission regarded the trip-leasing arrangement as a device which made it difficult
The regulations described above have the force and effect of law. A franchised interstate carrier cannot evade them by making an oral or written lease with an owner-operator of equipment for a trip, for a day or for an indefinite period, which attempts to exclude or to limit their application. When such a carrier engages an owner-operator of a tractor intending to have him transport goods for it on the public highways in interstate commerce, and indicates that intention by qualifying him therefor by means of the required identification and decals, the regulations must be deemed included in their contract. Vance Trucking Co. v. Canal Insurance Co., 249 F. Supp. 33, 39 (D. S. C. 1966); G. L. Christian & Associates v. United States, 320 F. 2d 345, 350-351, 160 Ct. Cl. 58 (1963); Hartford Acc. & Indem. Co. v. Major, 81 Ill. App. 2d 251, 226 N. E. 2d 74, 78 (App. Ct. 1967); and see Saffore v. Atlantic Cas. Ins. Co., 21 N. J. 300, 310 (1956); Leotta v. Plessinger, 8 N. Y. 2d 449, 209 N. Y. S. 2d 304, 171 N. E. 2d 454, 458 (Ct. App. 1960). Thus when a lessor-operator is engaged by the carrier for operation within the scope of the regulations he becomes what has been described as a “statutory” employee of the carrier, Brannaker v. Transamerican Freight Lines, Inc., 428 S. W. 2d 524, 535 (Mo. Sup. Ct. 1968), and the relation between them, whether oral or written, is governed by the regulations. And when the relation arises, the carrier-lessee takes “exclusive possession, control, and use of the equipment, and * * * the complete assumption of responsibility in respect thereto, * * * for the duration of said * * * lease, * * *” (
The last situation creates the problem here. It is neither sensible nor consistent with the basic intention of the Commission—protection of the public against dangers incident to the operation of franchise-authorized vehicles—to apply such a vacillating standard as Bond suggests for determining whether the carrier is responsible under
In our judgment the I.C.C. regulations designed to control the use of leased equipment must be construed most liberally in the interest of members of the public using the highways. Applying that principle in light of the history of
In the present case it is undisputed that McCaskill and his tractor were engaged under an oral lease. He said the lease was for an indefinite period. It was for the season, i. e., during the cold weather, and he could not work during the season for another carrier without Bond‘s consent. He received his daily assignment from the dispatcher and felt bound to honor it. In the 1964-65 season McCaskill had worked fairly regularly and exclusively for Bond for a month and a half before the accident. It is clear from his testimony that his engagement was not limited to intrastate operation. He was hired to truck in the Bond business, and beyond question a jury could find that he was to haul Bond‘s
Under all the circumstances, it was open to the jury to find that McCaskill‘s lease arrangement was within
Thus under the cases, presence of the decal and the Bond name on the door of the tractor at the time of the accident strongly implies operation thereof by McCaskill within the significance of
The evidence clearly justified the presumption that McCaskill was engaged in authorized operation for Bond at the time of the accident. Does the fact that he had finished his work for the day and was driving intrastate to his home in his “decaled” tractor so overcome that presumption that as a matter of law the issue of the carrier‘s special type of vicarious liability should have been taken from the jury and judgment entered for Bond? We think not. As is apparent from his own testimony, Bond‘s vice-president knew McCaskill was driving between his home and the company terminal with considerable regularity. The presence of the decal and ownership legend on the tractor at all times signified implied authorization to do so. But more than this, the proof justified a factual inference for jury consideration that such operation served the special interest of and was of business benefit to both Bond and McCaskill. The company was aware of the uncertainty as to the time when McCaskill would receive word from the dispatcher about his next assignment. This fact was undisputed. Therefore the jury could find
Although the Appellate Division accepted defendant‘s contentions — that the
Turnbow v. Hayes Freight Lines, Inc., 15 Ill. App. 2d 57, 145 N. E. 2d 377, 66 A. L. R. 2d 1075 (App. Ct. 1957) bears upon our problem. Hayes Freight Lines was an I.C.C. franchised motor carrier. It had leased a tractor for exclusive use in its business. Under the agreement the lessor drove the tractor in the carrier‘s operation, and he is described in the opinion as its employee. Upon completing a 350-mile trip
The Court of Appeals for the Third Circuit dealt with a similar problem in Mellon Nat‘l Bank & Trust Co. v. Sophie Lines, Inc., supra. On September 24, 1955 Sophie Lines, a non-franchised trucker leased its truck and driver under a 30-day written lease to Turner Transfer, Inc., a licensed I. C. C. carrier with operating permits limited to the carrying of certain knitting equipment in fixed areas. Turner decals were then placed on the truck and a copy of the lease was carried in it as required by the regulations. On September 29, 1955 the truck left Reading, Pennsylvania, with half a knitting machine to be delivered at Concord, North Carolina. On the way the driver stopped at Greensboro, North Carolina, to arrange with the Turner dispatcher at that station for riggers to be on hand at Concord. The dispatcher instructed him that after unloading at Concord he should
The court said that one of the principal purposes, if not the primary purpose, of the
Bond attempts to distinguish the Sophie Lines case because the Turner tractor was in the course of an interstate trip when the accident happened. The interstate aspect may appear to make the case a stronger one than ours for the imposition of liability on the carrier. But if the lumber were being transported wholly intrastate and not to Pennsylvania, we do not believe a judgment for the defendant as a matter of
In Leotta v. Plessinger, supra, the New York Court of Appeals faced a somewhat similar situation. On November 15, 1956, Riggs Dairy Express Inc., an I. C. C. certificated carrier, entered into a written one-trip lease with the owner of a tractor, who also furnished the driver, Plessinger.1 The agreement was for the carriage of an
The Court of Appeals disagreed with the Appellate Division. It referred to the grave concern of Congress over
“* * * Riggs acquiesced in a violation of the express mandate of the regulations which provide for the proper method to relinquish possession. Since Riggs seemingly failed to comply, or take any serious steps to assure compliance, it does not seem unreasonable to leave the question of liability to a jury.” 209 N. Y. S. 2d, at p. 309, 171 N. E. 2d, at p. 457.
It was declared further that the mandate of the regulations was not delegable to Plessinger, and that as a matter of law Riggs was in possession and control and, therefore, must assume responsibility. The opinion likened the truck bearing Riggs’ identifying decal to a flag which proclaims the nationality of the ship flying it. The court suggested that the carrier might introduce evidence to show that the identifying trappings were camouflage or innocent coincidence, or that the driver ignored instructions in failing to remove the decal; but “such explanations are for the jury to evaluate and appraise in the light of all the surrounding circumstances.” 209 N. Y. S. 2d, at p. 310, 171 N. E. 2d, at p. 458. Judge Desmond in concurring expressed the view that as a matter of law the
In Rosu v. Law, 193 F. 2d 894 (3 Cir. 1952), Law, the owner of a tractor, was engaged under written lease by Blue Star Foods, Inc. to haul a load of frozen eggs in Blue Star‘s trailer from Council Bluffs, Iowa, to Sunbury, Pennsylvania. He was to be paid for both the outgoing and return trips. In addition he had permission to seek a return load, the revenue therefrom to go to Blue Star. Law made a delivery in Sunbury and then one in New York. Being unable to locate a return load, he drove to Philadelphia with that purpose in mind. Then he fortuitously learned at a truck stop that the Liberty Motor Freight Lines, Inc. had a customer located on the outskirts of Wilmington, Delaware, which desired some merchandise taken to Kansas City, Missouri. Law agreed with Liberty to transport it. During an afternoon conversation with the Liberty dispatcher, Law was told to come to the office (some three or four miles from the truck-stop) that evening and obtain various necessary papers in connection with the shipment. This was to enable Law to be at the customer‘s plant in Wilmington early the next morning before the Liberty office opened, and to expedite the 1,300-mile trip to Kansas City. That evening Law went to the office in his tractor, which he had detached from the trailer, signed the lease covering his equipment and the manifest, both dated the next day. He was then given a Liberty I.C.C. sticker for his tractor. On leaving the office he intended to drive the tractor back to the truck stop, reattach the trailer and start for the customer‘s plant, in order to be sure to arrive there early in the morning to pick up the load. On the way back to the truck stop he was involved in a fatal accident. Liberty argued that Law‘s operation under its I.C.C. license did not commence until the next morning when he picked up the load at the customer‘s plant. In view of the circumstances and particularly Law‘s
In National Trailer Convoy, Inc. v. Saul, 375 P. 2d 922 (Okl. Sup. Ct. 1962) one Wix, owner of a tractor, made a one-year lease to haul trailers of National Trailer Convoy, Inc., an I.C.C. licensee. The regulations of the Commission were incorporated therein by express reference. Pursuant thereto Wix hauled a trailer from National‘s establishment in Tulsa, Okla., to Abilene, Tex. He delivered the trailer and detached his tractor to return to Oklahoma. On the return trip he was carrying the money he had collected for National for hauling the load. He did not reach Tulsa until long after the office had closed for the night. Consequently he could not turn the money in, nor could he obtain the receipt called for by the
We regard Judge Kilkenny‘s opinion for the Appellate Division in Felbrant v. Able, 80 N. J. Super. 587 (App. Div. 1963) as sound and substantially expressing the conclusion we have reached in the present case. Able, owner of a tractor-trailer executed a written lease of the equipment to Service Transport Company, an I.C.C. carrier. The lease provided, as required by the regulations, that for its duration the equipment would be in the exclusive possession, use and control of the carrier (which was given the right to halt the movement of the vehicle), that the carrier‘s decal and legend would be displayed on it, and that when the services were completed the identification markers would be removed completely. Service Transport Company owned and operated eleven freight terminals, two of them being at Norristown, Pennsylvania, and Parma, Ohio. Its transportation business covered seven states. Able‘s “domicile” terminal was considered to be Norristown, Pennsylvania, because he lived relatively nearby in Pottstown, Pennsylvania, and he customarily reported at Norristown. He would be given an assignment there and upon its completion would call the nearest
Around September 9, 1960, upon receiving instructions from the dispatcher, Able left home, drove to the Norristown terminal, picked up a load of freight and delivered it to Parma, Ohio. Then he carried a second load from Parma to the Port Newark terminal, at Newark, New Jersey. Upon completion of the unloading at Newark he was informed by the Norristown dispatcher that there were no further work assignments at the time. Able then requested and was granted permission to go “off further service” in order to allow him to return directly to his home in Pottstown, about 20 miles from the Norristown terminal, so he could attend his ailing wife. While on Route No. 1 in Elizabeth, New Jersey, on his way home, he collided with another vehicle. At this time the Service-Able lease was still in existence and the decal was still on the tractor-trailer, although it was easily removable. In the ensuing litigation Service maintained that its vicarious liability under the
In our judgment the result would have been no different if Able had returned to the Norristown terminal and went off duty at that point for his personal mission. In that event if the accident occurred during his intrastate trip home to Pottstown to care for his ailing wife, the presence of the I.C.C. decal on his equipment would still create, at least, a jury question as to whether he was engaged in Service Transportation‘s business. After Able arrived home and took care of his personal business he was obliged to telephone the dispatcher, just as McCaskill was, and advise that he was available for an assignment. In fact in Able‘s situation the time when he could be ready for work was somewhat indefinite because of his wife‘s illness. This contrasts with McCaskill‘s obligation which was to hold himself and his tractor in readiness for the next assignment which would come to him over the telephone either on the night of the accident or over the weekend.
Thus, under the circumstances of the present case and the authorities to which we have alluded, in our view it cannot
The broad general language employed by the trial court in its charge in presenting the factual issue to the jury for decision, i. e. whether McCaskill was engaged at the time of the accident in carrying on the activity of Bond, we feel was sufficient to meet defendant‘s sole objection that liability could not be found against it unless the tractor was on an interstate mission in its behalf. That contention phrased in variant ways in Bond‘s brief must be rejected as a basis for reversal. Nor do we find any substance in the argument that submission of the case to the jury on the issue of defendant‘s liability violated
Accordingly the judgment of the Appellate Division is reversed and the judgments in the trial court in favor of the plaintiffs are reinstated.
HALL, J. (concurring). Whether in a particular factual complex, the
Here the dispositive facts are, in my view, uncontradicted, or at the least, are in such an evidential posture that reasonable men could not differ as to them and the conclusions to be
The operative facts are admittedly different from those in most prior state and federal court cases dealing with the question. In those decisions the accident happened while both the vehicle and the lessor-driver were or had been away from the home state preceding, following, or during a gap in, interstate transportation. Here, on the other hand, the accident was in no way connected with an interstate transportation. On the day in question, and, in fact, on all but one previous occasion during the lease period, the hauling was entirely within the State and the mishap occurred while the lessor was driving his tractor home from Bond‘s terminal (both locations being in New Jersey, a few miles apart) after the day‘s work, with the expectation of a similar assignment the next working day. But I do not believe that such a factual distinction precludes a legal conclusion of vicarious liability under the current federal regulations. The same conclusion must also be reached with regard to Bond‘s even broader contention that liability cannot be imposed unless, at the moment of the accident, the vehicle was actually engaged in interstate commerce.
Furthermore, I do not deem it significant that a 30-day minimum written lease, which is required by the Com-
The dispositive facts in this case, as I see it, are Bond‘s furnishing a decal (in one form or another) to the lessor-driver bearing its Interstate Commerce Commission franchise number, and the continuous attachment of a decal to the leased tractor at Bond‘s direction. Although the testimony is confusing in some respects, viewing it most favorably to Bond indisputably demonstrates that this is so. Photographic evidence establishes beyond doubt that the cardboard decal, at least, was on the tractor at the time of the accident; and there is no evidence that the lessee at any time had ordered its removal. It is to be observed in this connection, that, clearly, a decal is not required by any federal regulation to be affixed where the leased vehicle is to be and is in fact employed only for intrastate transportation. Moreover, Bond‘s contention that its name was required on the tractor by the New Jersey motor vehicle law is erroneous.
I would hold that the decal conclusively evidenced Bond‘s intention to have the vehicle available and under its exclusive control for the entire lease period for interstate as well as intrastate transportation, and that Bond should not now be able to claim otherwise. This being so, the federal enactments must apply throughout, and Bond is required thereby to assume full responsibility to the public for the operation
If more on the question of Bond‘s intention is required, it is found in the one interstate trip undertaken by the lessor-driver during the period. Whether that hauling was Bond‘s job conducted under cover of another‘s franchise, or was the job of the other and Bond subleased the equipment, Bond‘s intention to have the leased vehicle available for interstate transportation is clearly evident.
Additionally, it is to be noted that the ill-fated trip from the terminal to the lessor‘s home, in accord with a frequent practice and with Bond‘s full knowledge and acquiescence, was in the latter‘s business interest by assuring the lessor-driver‘s availability at the terminal for the next early morning assignment. Cf. Wright v. Globe Porcelain Co., 72 N. J. Super. 414 (App. Div. 1962); Prosser, Torts (3rd Ed. 1964), § 69; 2 Harper and James, Law of Torts (1956). § 26.7, p. 1378.
I concur in the result reached by the majority.
For reversal — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN. — 7.
For affirmance — None.