Newsome v. Surratt
74 S.E.2d 732
N.C.
1953
Check Treatment
DeNNY, J.

Tbe determinative question raised by this appeal is simply this: Did tbe court below commit error by tbe entry of a judgment in favor of tbe Motor Lines over against its codefendants, tbe Transit Company and Porter, in tbe sum of $6,000.00 and tbe costs of tbe action? Tbe answer must be in tbe negative.

*300 It is a well settled rule of law that there ’can be no indemnity among mere joint tort-feasors. Rut this rule does not apply to a party seeking indemnity who did not participate in the negligent act, but is liable only by reason of a duty or liability imposed by law, or where the parties are not in pari delicio as to each other. Gregg v. Wilmington, 155 N.C. 18, 70 S.E. 1070; Guthrie v. Durham, 168 N.C. 573, 84 S.E. 859; R. R. v. Guarantee Corp., 175 N.C. 566, 96 S.E. 25; Power Co. v. Mfg. Co., 180 N.C. 597, 105 S.E. 394; Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502; Taylor v. Construction Co., 195 N.C. 30, 141 S.E. 492; Johnson v. Asheville, 196 N.C. 550, 146 S.E. 229; Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E. 2d 118; Builders Supply Co. v. McCabe, 366 Pa., 322, 77 A. 2d 368; Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1145, 49 N.W. 2d 501; Panhandle Gravel Co. v. Wilson (C.C.A. Texas), 248 S.W. 2d 779; War Emergency Co-Op Ass’n. v. Widenhouse, 169 F. 2d 403, certiorari denied, 69 S. Ct. 300, 335 U.S. 898, 93 L. Ed. 433.

The appellants take the position that since the lease between the Transit Company, the lessor, and the Motor Lines, the lessee, provides that during the term of the lease the vehicle of the Transit Company “shall be solely and exclusively under the direction and control of the Lessee who shall assume full common carrier responsibility (1) for loss or damage to cargo transported in such motor vehicle and (2) for the operation of such vehicle,” that this provision created the relation of master and servant between the Motor Lines and Porter, the driver of the truck. Therefore, they contend that the lessee and not the lessor is liable for the negligent acts of Porter, citing Wood v. Miller, 226 N.C. 567, 39 S.E. 2d 608, and Brown v. Truck Lines, 227 N.C. 299, 42 S.E. 2d 71.

In order to have a clear understanding of the duties and obligations of the respective parties under a lease agreement like the one under consideration, it is necessary to construe the lease in light of certain principles of law which are applicable to this class of contracts.

In the case of Hill v. Freight Carriers Corp., 235 N.C. 705, 71 S.E. 2d 133, Barnhill, J., in speaking for the Court with respect to a lease agreement similar in form to that under consideration, said: “Hence, as between the plaintiff and the defendant, purely in respect to their mutual contractual rights and liabilities, one to the other, the owner of the vehicle occupied the position of independent contractor. Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137; Bass v. Wholesale Corp., 212 N.C. 252, 193 S.E. 1; Hudson v. Oil Co., 215 N.C. 422, 2 S.E. 2d 26; Beach v. McLean, 219 N.C. 521, 14 S.E. 2d 515; U. S. v. Trucking Co., 141 F. 2d 655. On the other hand, the vehicle was to be operated in interstate commerce in furtherance of the business of the lessee as a franchise carrier of freight. It was to be operated under the franchise and license plates of the lessee *301 in fulfillment of its contracts for transportation of freight in interstate commerce. Therefore, the person who actually operated the vehicle (whether the owner or a third party hired by him) was, as between the franchise carrier and the consignor, the consignee, and third parties generally, a servant or employee of the defendant. This is true in fact for he transported cargoes in behalf of the franchise carrier and dealt with the consignors, consignees, and the public generally as agent of the franchise carrier. Furthermore, public policy requires it to be so held.”

Likewise, it seems to be unanimously held by the courts that where a public authority grants an individual or corporation the right to engage in certain activities involving danger to the public, which right is denied to the general public, the duty to protect the public while performing such franchise activities is legally nondelegable and the franchise holder is therefore responsible for the conduct of those who are permitted to act under such franchise, even though such persons be independent contractors. Hodges v. Johnson, 52 F. Supp. 488; Brown v. Truck Lines, supra; Motor Lines v. Johnson, 231 N.C. 367, 57 S.E. 2d 388; Eckard v. Johnson, 235 N.C. 538, 70 S.E. 2d 488; War Emergency Co-Op Ass'n. v. Widenhouse, supra; Trautman v. Higbie, 10 N.J. 239, 89 A. 2d 649; Zimmerman v. Mathews Trucking Corp., 105 F. Supp. 57; Venuto v. Robinson, 118 F. 2d 679; Costello v. Smith, 179 F. 2d 715, 16 A.L.R. 2d 954; Barry v. Keeler, 322 Mass. 114, 76 N.E. 2d 158; Carter v. E. T. & W. N. C. Transp. Co. (Tenn. App.), 243 S.W. 2d 505; Eli v. Murphy (Cal.), 248 P. 2d 756; Aetna Casualty Surety Co. v. Prather, 59 Ga. App. 797, 2 S.E. 2d 115.

It is stated in 57 C.J.S., Master and Servant, section 591, page 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.”

We have held that when an interstate franchise carrier executes a lease or contract by which its equipment is augmented and used as one of its fleet of trucks under its franchise and with its license plates attached thereto, the holder of the franchise is responsible for the operation of the truck in so far as third parties are concerned. Brown v. Truck Lines, supra; Wood v. Miller, supra; Motor Lines v. Johnson, supra; Eckard v. Johnson, supra. We have likewise held that the franchise carrier in such cases is also liable to the driver of such truck for any injury that may arise out of and in the course of his employment within the purview of our Workmen’s Compensation Act, and that the driver of such leased vehicle is not bound by any provision in the lease to the contrary. Brown v. Truck Lines, supra; Roth v. McCord, 232 N.C. 678, 62 S.E. 2d 64.

*302 Tbe liability thus imposed on interstate franchise carriers is to prevent such carriers from evading tbeir responsibility by the employment of irresponsible persons as independent carriers. Hodges v. Johnson, supra; War Emergency Co-Op Ass’n. v. Widenhouse, supra. However, as pointed out by Parker, J., in tbe last cited case, tbe liability of tbe franchise carrier was secondary, and in tbe absence of some countervailing equity, tbe carrier is entitled to recover over against tbe owner of tbe leased truck.

In tbe instant case, tbe owner’s regular driver was in charge of tbe Transit Company’s truck, and in reality of course tbe only thing that tbe franchise carrier did was to tell him where to go and what to bring or carry. And tbe duty impose/I by law with respect to third parties in no way interfered with tbe right of tbe lessor to agree to indemnify tbe lessee for any loss it might sustain as a result of tbe negligence, incompetence or dishonesty of any driver which tbe lessor might furnish to operate tbe leased truck. Here it is conceded that tbe negligence of Porter, tbe driver furnished by tbe Transit Company, was tbe sole proximate cause of tbe plaintiff’s injuries and damage.

Tbe appellants also rely on tbe case of Hill v. Freight Carriers Corp., supra, to support tbe view that a party cannot exculpate himself from liability for bis own negligence. In that case, however, tbe cause of action arose in tbe State of Georgia and involved an injury to a driver furnished by tbe lessor to operate tbe leased truck. Such driver was injured by tbe negligence of an employee of the lessee. Tbe rights and liabilities of tbe parties were determinable under tbe statutory law of tbe State of Georgia. Tbe case is not in point or controlling on tbe facts involved in this appeal.

Tbe judgment of tbe court below is

Affirmed.