*1 7 to the decided majority, Turning 14, 1973, when the that November record shows on allowed, the and defend motion for severance People court, that and stated to the ant were in agreement, was “not until 17 “term” for defendant January [1974].” trial for November that the court set defendant’s At 19, 1973, on 19 defendant answered November ready continuance, and moved for for trial. People thereafter, caused all were delays delay, People. hold, record, this To on a new 120 period days effects commenced November perversion complete the addition of section Fortunately subpara 5(c). 103— Rev. Stat. ch. par. graph (f) (Ill. 5(f)), 103 — defendant, this enacted too late to aid will although which results from injustice preclude repetition the action majority.
(No. 48545 . SCHEDLER, v. INTER ROWLEY E. Appellant, JOHN CO., et INC., al.— TRANSPORTATION STATE Co., Interstate Transportation Appellee.) (Rowley 5, 1977. Opinion October filed *2 MORAN, J., part. no took
RYAN, dissenting. J., Paddock, & of Rock-
Roszkowski, McGreevy Johnson, Williams, for T. Jr., ford counsel), appellant. (Daniel Dixon, for W. appellee. Sturgeon, J. delivered MR. GOLDENHERSH opinion JUSTICE of the court: Ill. R. Rule Court 2d 304(a) (58
Pursuant Supreme Schedler, from the E. appealed plaintiff, 304(a)) John entered in court of Carroll County of the circuit judgment Co., Interstate Transportation of defendant Rowley favor for Inc., of its motion summary judgment. allowance 3d we affirmed Ill. (37 App. appellate for leave appeal. allowed plaintiff’s petition from to recover action seeks damages In this plaintiff D. Dixon injuries and Donald personal defendant driven a a tractor owned collision between suffered On the an automobile driven by plaintiff. Dixon and lease to tractor under occurrence date in interstate commerce defendant, a motor engaged the Interstate Commerce a issued by under certificate defendant’s his tractor and Commission. pulling Operating trailer, had a load Dixon transported freight Haven, Iowa, to Connecti- New defendant from Dubuque, for another carrier He then cut. cargo transported Connecticut from upon discharging Chicago *3 his and trailer to home driven the tractor empty cargo the he drove tractor Savanna, Illinois. day in following off the trailer at and and trailer to dropped Dubuque the to While he tractor defendant’s terminal. was driving Savanna, this arose the collision out of which litigation occurred. the of the public
Although recognizing applicability the vicarious franchise doctrine and liability thereunder, the court con certificated carrier appellate the lease covered terminated by cluded that the “activity tractor, Dixon, of the leased when owner-driver terminal in trailer to Rowley returned empty *** the owner-driver At the time of injury Dubuque. to his for his tractor transportation using [Dixon] benefit, in no own, his and mission of his own home—a or connection with business any way having advancing Ill. 438-39. 3d App. Rowley.” collision, to the six months prior Approximately Dixon and defendant had into entered lease agreement on the form the Interstate by Commerce prescribed alia, lease, Commission. The inter that “the provided leased under this in the exclusive equipment agreement control, and use of the authorized possession, Lessee and that the Lessee full assumes in responsibility to it is to the respect equipment operating, public, INTERSTATE COMMERCE shippers, COMMIS- *** SION. Lessee shall of, not be liable for the loss to, the aforesaid caused, damage however equipment, while in use of this under terms lease. Lessee agrees of the above sign described receipt possession equipment upon described completion trip above the Lessor will for the sign receipt equipment been returned his having “Possession be possession.” surrendered termination this company.”
Plaintiff contends that II of the provisions part Interstate et Commerce Act U.S.C. sec. 301 (49 seq.) the rules Interstate Commerce Com- promulgated mission “intended to full to the place public carrier,” on the that the lease effected “an assumption and a liability by waiver defenses Rowley denying and that the vicarious thus assumed is agency,” not the common law doctrine of governed by respondeat It is defendant’s superior. “Under ‘Public position Franchise Rule’ a lessee is not for the conduct responsible of his lessor who is not the time of the engaged occurrence some on the business of activity carrying the lessee in interstate commerce” and that the judgment should be affirmed.
Part II of the Interstate Commerce Act provides the Interstate Commerce Commission may prescribe regu- *4 use lations “with to the motor carriers respect by (under leases, contracts, or of other motor vehicles arrangements) them,” not owned and “such other as by regulations may be in order to assure that while reasonably necessary are motor vehicles so the motor used [under lease] and control such vehicles carriers have direction will full of and be for the thereof will fully responsible operation ***.” U.S.C. sec. Pursuant added.) (49 304(e).) (Emphasis to this Com- Interstate Commerce specific delegation mission rules and and (“Lease promulgated regulations Vehicles,” 49 C.F.R. sec. 1057 Interchange (1976)) which in that a lease pertinent part provide agreement must made carrier be between authorized and owner must in be equipment, writing and, certain not relevant with (1057.4(a)(2)), exceptions here, must be for a of not less than 30 days period as a “Owner” is defined person (1057.4(a)(3)). “(1) issued, whom title to has or as been who equipment (2) lessee, has to exclusive use for a right equipment than 30 or who period has lawful longer days, (3) and has the same possession equipment registered licensed in State States or or the District of any Columbia its rules, his or name.” The so far as (1057.2(f).) here, relevant also the lease shall require provide control, “the exclusive use possession, equip- ment, and for the complete assumption thereto, the lessee respect for the by duration of said contract, lease or other arrangement.” (1057.4(a)(4).) Section that the lease “Shall 1057.4(a)(6) provides specify the time and date or circumstances which contract, lease, or other the time arrangement begins, or the circumstances on which it ends. duration contract, lease or other shall coincide with arrangement for the giving receipts equipment this section.” Section required paragraph (b) “When 1057.4(b) provides: possession equipment taken authorized or its or regular employee it, carrier, authorized to act for said duly agent employee or shall to the owner of the or the agent give equipment, owner’s employee identi- agent receipt specifically
12 time of the date and the and lying equipment stating taken; when the thereof is and possession day possession ends; it or its or carrier employee the authorized agent or its of shall from owner equipment, obtain it, for to act authorized or duly regular employee agent and stating equipment receipt specifically identifying is of thereof the time therein the date and day possession taken.” The rules also for identification provide as that of the carrier-lessee leased (1057.4(d)) equipment that “The authorized equipment and operating it as the remove this shall under any legend, showing part shall carrier, such equipment, displayed operating it as the device removable operating remove any showing carrier, before possession relinquishing equipment” Association, v. Inc. In American Trucking (1057.4(d)(1)). 337, 307, States, 298, S. Ct. 97 L. Ed. 73 United 344 U.S. valid, the held were in which rules and regulations the Act and the abuses which Court reviewed Supreme to were designed prevent, accompanying regulations financial which was difficulty “fixing among *** *** members of for injuries responsibility Lines, Miller Inc. v. Brada Transamerican Freight public.” 28, 37, Inc., L. Ed. U.S. 46 2d Systems, 423 Freight 177, 96 S. Ct. 234. and the courts of has not decided Court Supreme of the whether liability are not in
appeals agreement of respon rests common law carrier-lessee principles Lines, Inc. deat v. Transamerican Freight superior (Wilcox vicariously 371 Cir. 403) F.2d 1967), (6th at of the vehicle use made of the being imposed regardless Cir. Simmons v. King of the occurrence. (5th the time (See 857; & Trust Co. v. National Bank 478 F.2d 1973), Mellon We are Lines, Inc. Cir. F.2d 473.) 289 Sophie 1961), (3d of the that it was the purpose regulatory opinion be that the carrier-lessee vicariously responsible scheme the leased vehicle negligent operation public it was the time in to whether without regard Cosmopolitan the lessee. used in the business (See F. Del. Co. v. White Mutual Insurance (D. into would hold otherwise To permit injecting 92.) Supp. case the issues of employment each scope agency, the occurrence out of which of the movement purpose arose, thus the declared regula- purpose defeating tions to eliminate problem fixing Absent members public. injuries damages *6 sections of with 1057.4(d) proof compliance to if is liable hold that Dixon we plaintiff, 1057.4(d)(1), held must be liable. vicariously defendant 390, Lease, Ill. Econo Inc. v. In 2d Noffsinger, “A for will the court said: motion summary judgment admissions be if the depositions, granted pleadings, as to reveal there is issue affidavits on file that no genuine a is entitled to material fact and that the movant any as of Rev. Stat. a law. decree matter (Ill. judgment 110, par. ch. B. C. Carruthers v. Christopher 57(3); Co., must an & 57 Ill. A reverse 376.) 2d reviewing if a it is determined that order summary granting judgment of fact exist.” material does question Upon application the circuit courts this rule and appellate judgments to the circuit court are reversed and the cause is remanded Carroll for further County proceedings. Reversed remanded. no MR. took considera- MORAN part JUSTICE of this case. tion or decision RYAN,
MR. dissenting: JUSTICE I cannot with majority’s pronouncement agree to a “carrier-lessee that vicariously responsible [is] the leased vehicle for the operation public negligent it was to at the without whether regard In my used in the lessee.” business opinion, being this conclusion is not Interstate Com- supported merce Act or the relevant Interstate Commerce Commis- sion regulations.
The relies 49 U.S.C. sec. heavily majority its carrier-lessee’s to 304(e)(2) holding support attaches without whether negligence regard the vehicle was time of a conduct at the driver’s negligent in the business. That section used lessee’s part being as relied on reads follows: 304(e)(2) *** prescribe he Commission is authorized “[T] may reasonably necessary other as be (2) regulations such vehicles are so in order to assure that while motor used the motor carriers will have full direction and fully responsible control of such vehicles and will be operation thereof ***.” However, it out the ma- point significant to note a failed that sec- jority qualifying phrase Act, below, tion of the italicized which limits plainly and circumscribes the carrier insofar as the leased vehicle is with the concerned. quotation omitted is as follows: phrase *** prescribe he is authorized to Commission “[T] regulations may reasonably necessary be
(2) such other *7 in order to assure while motor vehicles are so being the motor will have direction used carriers full fully responsible for control of such vehicles and will be *** were the owners operation they the thereof of if (49 (Emphasis added.) such vehicles **'*.” U.S.C. sec. 304(e)(2).) to define the the italicized was intended
Clearly, phrase limits the of the Interstate Commerce authority the extent of a Commission to by regulation prescribe However, the carrier’s liability. import decision, absolute which responsibility apparently imposes the all occasioned the lessee for by damages lease, the vehicle the term during operation the Act. to the intent manifested by contrary of respon- concepts that traditional I do not dispute the Act or that such cases not in deat do superior prevail the have broadened the Commission and regulations the However, even under of a carrier-lessee. responsibility there broadened expanded theory the use of some nexus between still must be found the claim of which of the accident out vehicle at the time An of the carrier-lessee. analysis arose and the business discussed, in misinterpreted, by the cases and my opinion bears out this conclusion. the majority Mutual Insurance relies on Cosmopolitan The majority 92, in F. Del. Co. v. White support Supp. (D. that a carrier-lessee’s of its negligent holding to without whether a driver attaches conduct of regard in was used in the leased vehicle the time being question I find the business of the lessee. frankly, Quite to under- on difficult reliance Cosmopolitan majority’s in stand, that at the time since in that case the court found in was used the leased vehicle furtherance carrier’s business. defendant a truck a driver of owned by In Cosmopolitan, carrier was involved in lessor and leased to the defendant an his conduct. At accident caused by alleged negligent accident, a load for was time driver hauling carrier, not needed another since his services were issue, the carrier-lessee. driver was At particular he en to an destination where route planned overnight for the other carrier on before the load stay picking up however, held, that the The court morning. following driver’s actions “were certainly [the carrier-lessee’s] The court noted that F. business.” (336 99.) Supp. carriers “an loads for other of hauling practice function primary incidental accomplish necessary *** available purpose [having] lessee] [to its business.” vehicular carry requisite equipment that the F. (336 99.) finding Supp. *8 16
driver was on the business the an carrier-lessee was the one ultimate decision that it was important regards the driver’s such a Without responsible negligence. the its reliance on finding by Cosmopol- today, itan is questionable.
Simmons v. Cir. King (5th 1973), F.2d Lines, Mellon National Bank & Co. v. Trust Inc. Sophie Cir. cited both the 289 F.2d (3d majority, two were cases which the of carrier- expanded liability lessees that of the traditional limitations beyond pre- however, scribed Once it is by respondeat superior. again, cases the out that in both respective significant point on the courts that the drivers were business found conduct. In time of their carriers alleged negligent Simmons little that driver was there was question business, the lessee’s since at the time negligent a load of conduct driver was hauling sugar for the In Mellon defendant carrier. the Court Appeals there a conclusive Third Circuit held that presumption carrier’s business that driver was on defendant another carrier. The he lumber for when was hauling from the that the defendant noted practice profited carried carriers where trucks had loads for other hauling Thus, while en defendant’s loads route freight. up pick the court declined apply concept respondeat rigid was on the business it that the driver still found superior, ICC the carrier under the broad leasing language case, nor in However, there that is nothing arrangement. matter, the contention that Simmons for supports an effectual leasing arrangement imposes at the of whether lessee regardless conduct the vehicle driver’s negligent lessee. used in business own cases my cited by majority, In addition to has the court case in which has found no applied research Act rule under regula- an absolute-responsibility *9 Mutual Co. v. See, Liberty Allstate Insurance e.g., tions. 121; Felbrant v. Co. Cir. 368 F.2d Insurance (3d 491; Duke v. 587, 194 Able 80 A.2d Super. (1963), N.J. 656; Gack- Thomas 343 S.W.2d (Mo. App. 1961), stetter v. Dart Transit Co. Minn. 130 269 (1964), N.W.2d 326. v. Dart Co. is a case similar to
Gackstetter Transit very Gackstetter, the one us In a driver was before today. in involved an accident while a truck leased to driving carrier-lessee an ICC The under leasing arrangement. Minnesota, Court of the time of Supreme noting the accident the driver was on a purely pursuit, personal found that the carrier-lessee could not be held liable even the in its vehicle was used with though I think the of Gackstetter is permission. per- reasoning suasive. court the doc- appellate applied public-franchise
trine as in Restatement of Torts expressed (Second) court, section this In both 428 (1965). appellant raised its appellee arguments concerning applicability. However, except noting appellate doctrine, of this recognized applicability makes no it. reference to
Section the Restatement 428 provides: “An corporation activity individual or on an carrying which lawfully only can be carried on under a franchise granted by public authority and which involves an others, subject liability risk of unreasonable harm to by the physical negligence harm caused to such others carrying on do work in employed a contractor ” activity. (Emphasis added.) It cannot be said that this doctrine does public-franchise not to motor carriers under Interstate operating apply to its Commerce Commission and subject regula- permits to section in *10 a carrier that who fails to theory espoused with the surrender of comply regulations concerning and removal of the carrier’s C.F.R. possession legend (49 secs. assumes absolute 1057.4(d) 1057.4(d)(1)) for the leased vehicle. of the carrier’s on the vehicle at presence legend the time of the accident at most would constitute some evidence that the vehicle in the used furtherance However, carrier’s business. in his in this deposition case, Dixon that demonstrated (the owner-driver) plainly he was in a theAs engaged purely personal pursuit. out, his ter- appellate opinion pointed trip minated when he returned the trailer to empty and he was under no further from carrier at assignment He time. could have his vehicle to another trip-leased carrier. He could have he remained until Dubuque received a call for another from carrier- Rowley trip (the home, he could have returned to his which he lessee), chose to do. This last fact seems to offset any presumption on at the Dixon was the carrier’s business time of the fact, in accident and would at lease create a question a trial which case should have remanded for on opinion however, this issue. In no of fact my opinion, driver, Dixon, filed The deposition presented. that at the indicates summary clearly judgment, support in no he was accident pursuit personal the carrier-lessee’s business. in furtherance of way (No. 49281 . Adm’r, v. AVIA- ALTON, BYERLY A. Appellant,
JAMES INC., TION, Appellee. Opinion October 1977. filed tions because the notes reporter’s list more than Restatement of Torts (Appendix) (Second) 40 cases both the State courts wherein the Federal and courts, cases, motor carrier have deciding applied considered the doctrine as stated in the public-franchise the last Restatement. It should be noted that phrase above, which section has been italicized as quoted limits the on the one activity carrying “in acts carrier. activity” negligent carrying This does not mean same as “in course necessarily of his but at least conduct must have employment,” occurred while the one some act employed performing in the furtherance of carrier’s business. This is the case I have read import every concerning responsi- carriers, none certificated of which bility employ