*1 objection urge error may evidence to be admitted without first time on of such evidence for in the admission and consideration 81, 86, 87, 251 N.E.2d appeal. (People Sweeney (1969), Ill. 33, 43, 228 Jennings N.E.2d People judgments therefore affirm conviction.

Affirmed.

GUILD, SEIDENFELD, J., J., P. concur. SCHEDLER, INTERSTATE Plaintiff-Appellant, v. ROWLEY E. JOHN CO., INC., Defendant-Appellee. TRANSPORTATION (2nd Division) District No. 74-150

Second Opinion April filed 1976.

DIXON, J., dissenting.

Roszkowski, Rockford, Johnson, appellant. Paddock of for Sturgeon, Dixon, appellee. W. for J. the court:

Mr. RECHENMACHER delivered the JUSTICE summary is for defendant appeal This an from a entered a appeal, in is a to this owned personal injury party a case. who not defendant, Interstate he tractor which leased Co., Inc., (hereinafter to as Transportation Dubuque, Iowa referred Rowley assigned loads to Rowley). arrangement various Under trailers pulling hauled with Dixon’s tractor owned be interstate Rowley’s ICC as indicated Rowley. trips made under These were trip. indicia tractor on each attached Dixon’s Connecticut, did, he a to haul to which given Dixon was trailer load Connecticut, up picked Dixon permit. Leaving Rowley’s Chicago it back to on cargo brought for another carrier and trailer to his home Chicago empty From Dixon hauled the trailer. him Savanna, Rowley required him and The between Illinois. delivery. The after each Rowley’sheadquarters empty return his home empty trailer from following Dixon the tractor and day drove trailer. Dubuque and returned Rowley’s headquarters Savanna to Savanna. on his home to Driving only, then started Dixon Hanover, About continued on. then stopped Enroute he to visit a friend a collision Dixon was involved miles from Savanna five injuries on account personal suffered plaintiff, which the Dixon and brought against he suit both which is on the so-called against Rowley suit based many and in generally by the Federal courts recognized franchise” rule is under interstate shipment made State decisions cases where exception to the familiar creates an commerce certificates. rule contractor and is stated independent acts nonliability doctrine of §428, (Second) in the of Torts follows: Restatement can corporation on an which carrying “An individual or a lawfully granted by public on under a franchise carried risk of harm authority and which unreasonable involves others, subject physical harm to such others caused negligence a contractor to do work employed activity.” adopted its in several recognized principles has been viz., 198; cases, Youngren, App. 12 Ill. Illinois Louis Hartford v. B Gunterberg Indemnity Major, Accident & & M 3d 732. Transportation independent Generally speaking, contractor employing one such tort vicariously separate liable for contractor’s (Gomien Wear-Ever performance committed work *3 Inc., above, Aluminum, exception this 19), 50 Ill. 2d as an to but indicated may apply activity requires doctrine in those where the work or cases however, to it that law carry Conceding, franchise on. Illinois recognizes equipment the as to a lease of applying permit, ICC present we are the that the facts of case do the come within the It that the as worded exception. will be noted to specifically physical refers for harm caused “liability Restatement * * s by the negligence employed others of a contractor do work this activity.” added.) the While Illinois law on (Emphasis Torts, it fair point is Law of we think by not bound the Restatement the say franchise” that Illinois has not the doctrine broadened Therefore, beyond point the to be resolved the Restatement. decisive here, collision, Dixon, lessor, the was time whether at the not, lessee, “carrying Rowley. If activity” on the he was vicarious liable. apply Rowley would not to make that: point provided A is made that this case is in the exclusive equipment agreement under this leased “[T]he possession, lessee and control use of authorized carrier it respect responsibility the lessee assumes full to the operating, shippers Interstate public, Commerce Commission.”

Since the lease was a one under which Dixon would use as Rowley anytime Rowley designated tractor to haul for a load him, ready apparently plaintiffs theory for it is that wherever Dixon was, it might purpose, use his and for the terms of the whatever lease, Rowley until the lease possession, the exclusive use control However, arrangement testimony of Dixon actually was terminated. any employee Rowley, pay established that he sense gross trip for each solely percentage was based on a certain of the load basis; paid Rowley and he was for each on that did not tell Dixon take, withholding what tax keep any hours to or what routes to nor deduct responsibility from his for payments; Rowley nor did have still, that he maintaining equipment. important More Dixon testified if liberty was at to haul for when and he wished to do so. He others regarded being self-employed. testified he He also testified himself Rowley going leased to east and that he often carried was trips such the tractor returning during for another carrier west and that “trip company,” through was leased to whom he contacted another (on deposition): “[B]y In question broker. answer goods had to be your virtue of lease with whenever ship you obligated shipped from here east or other directions were load, them, yes.” “If I you were not?” Dixon answered: wanted us, to establish testimony, appears The net effect of this was Dixon’s tractor open-end leasing arrangement while there was an the exclusive Rowley, Rowley between Dixon and did not have lease, except possession, use and control of the tractor recited during an actual trip for lessee- of the the Illinois cases we have cited where under an operation

carrier was from the leased vehicle derived franchise, engaged in the business of actually the lessor-owner was Thus the giving liability. rise to the carrier the time of the incident language of the Second clearly parameters within the situation above, was a direct since there quoted Restatement of Torts activity” authorized “carrying on of the between the accident and the the franchise. us. He is true the case before plaintiff contends the same the trailer to Dixon to return

argues required that since the lease *4 Savanna, the home and since Dixon’s was headquarters Dubuque to drive the have to tractor parties contemplated that Dixon would Savanna, therefore, trip to the return it Dubuque and then return to under the covered trip, hence necessary part Savanna was a of the whole parties the knew it is agree. lease. We While obvious do not he had after to Savanna his tractor “bob tail” back Dixon would drive fasten is sufficient to fact not Dubuque, this obvious returned the trailer to

437 whereby operator the the of leased liability Rowley on under doctrine as binds the public under a franchise such an franchise” negligence. lessee carrier for the lessor’s so-called salutary is based on sound extending liability the carrier’s one rule In this logic justice require. far and but it extends as as public policy as liberty to do case, the Dixon was returning Dubuque, after trailer to the to by the terms of certainly required he was not pleased—he north, or south west straight gone return home to could have Savanna—he carrier. pulled a trailer for some other Dubuque from and could have load Dubuque He could have the leased tractor returned housed Therefore, to or to Savanna. hold transportation another vehicle left the continued after Dixon alone, duty no headquarters with his on his home and under would, think, an unintended extension to we unwarranted and is question. Rowley’s required rule in franchise for Dixon Savanna, logical is it his tail” his nor or return “bob tractor to own home public protection its just (Rowley) the carrier to extend require doing Dixon while he so. justice while the recognize carrier’s carrier, being is attached to the tractor returned to even part empty. This is

though load has been delivered and the trailer (See it the lease and has been so held in several cases. American Transit 86, denied, 889, 355 U.S. 2 (6th 1957), v. Cir. F. Lines Smith 2d cert. 188, hand, in 78 Ct. Deaton L.Ed. S. On the other Stevens Line, 229, 464, though Inc. So. Truck 256 Ala. even defendant-carrier, the owner-lessor sustained servant acting held within carrier was not liable the owner-lessor opinion, authority of his at the collision. our scope time of the here, his scope longer acting no within lessor-owner was when, completed the authority having under the ICC franchise trailer, empty he left for home Savanna returned longer unattached tractor. At that time he was no on behalf of analogy Workmen’s to certain invokes covered to have been

Compensation employee cases which have held enroute to from employer’s of his business while course Thus, Sproule, 33 Ill. 2d Sjostrom place employment. work, still under held he was where was enroute However, this statute. protection Compensation of the Workmen’s (see in such cases Public general clearly case is Recovery Com., Disposal Ill. United Service Industrial indicates, As itself 480). Sproule Co. v. case was determined coverage Compensation that case Workmen’s *5 under the special circumstance that the employee was required to travel his Chicago from home in request at the employer to a construction Illinois, site in Bradley, permanent which was not his and usual place of employment. In the rare case where an has been held to be covered under the Workmen’s Compensation statute his way while on home from work there was a causal place connection between the accident and the employer’s premises or (See the nature of the work. plaintiff cites Christian v. Schafer Chicago Ry. Illinois Midland 412Ill. as favorable to his cause. however, Actually, the court held in that plaintiff case that the his employment course of since his employment expose did not him to any greater risk point at the of the accident than any other member of the exposed would have been spot, to at the same hence the nature of employment had no bearing on the risk. event,

In any we do not consider cases under the Workmen’s Compensation being statute as analogous to the situation here since the Workmen’s Compensation statute is special designed statute for the protection of the working questions man and of coverage thereunder are broadly so, somewhat construed. Even neither the cases cited plaintiff nor those we have found helpful elsewhere seem to be to the plaintiff question on the coverage after leaving the employer’s premises.

The doctrine involved here founded public policy and is not to be construed narrowly so as to its purpose protecting defeat general public. consideration, This however, plaintiff does not relieve the proving burden of negligent that the acting driver was in a relationship to the defendant carrier since that what makes the doctrine applicable. All plaintiff proved in this case was that Dixon was on his dropping home after off the pursuant trip to a arrangement between parties. We do not consider these facts sufficient to establish liability under the doctrine of derivative invoked based on the ICC franchise.

However broad the may vicarious of the carrier where owner of the is operating franchise, the carrier’s we think does not extend beyond point where longer the owner-lessor is no carrying on the carrier’s business activities. Based on the evidence here (including lease), we are of the covered tractor, lease terminated when the owner-driver of the leased returned the empty trailer to the Rowley Dubuque. terminal in interstate carriage for which Rowley’s necessary franchise was was ended at that point. At using the time of the injury (Dixon) the owner-driver own, transportation to his home—a of his mission benefit, connection with the way advancing having any no

own business stiBattached the ICC decals were not consider the fact that do significant under the accident as tractor at the time of the removed and were this case. have been They

circumstances of should but the fact to be removed after terminated required by it would liability where is not sufficient to extend they were not exist. otherwise not affirmed. the trial court is affirmed.

Judgment *6 MORAN, J.,P. concurs.

T. J. dissenting: DIXON

Mr. JUSTICE require and such contracts require ICC rules written contract for, the of, possession responsibility vest exclusive rental, days of must exceed 30 during the the life which authorized carrier trip leasing. one-way and is the owner. The rules abolish when the driver 298, 308, States, Associations, v. 344 U.S. Trucking Inc. United American Lines, 337, 354, 307; Inc. Freight 97 73 S. Ct. Transamerican L.Ed. 169, 177, 428, Inc., L.Ed.2d 423 U.S. Systems, Freight Brada Miller 229, S. Ct. 234. rules, leasing contract used a standard compliance complete use, also possession, control and provided

which for exclusive the lease. The assumption public during the life of responsibility the of effect on date the accident. driver, of his own liability insurance lessor had no legafiy not have any sort. He could and had no Illinois certification Savanna, Illinois, unless he was this truck from his home moved 95%, seq. 1971, par. ch. 18—100 et Rowley. (Ill. Rev. Stat. service 701, lease knew 702.) Rowley, by virtue of the especially pars. 18— 18— further, Rowley, inception at that this truck had Iowa license. stating truck that the truck plastic signs glued had the lease June prior at time signs belonged to These were never removed accident. relationship. leasing contract here creates a master-servant 732, 738, 739.)It 27Ill. Transportation v. B & M 3d (Gunterberg fact has the if he in that master’s control be exercised not essential control, not the fact of control power right It is the of control. a servant from an principal distinguishing factor (1971); IPI 2d Gunterberg, Comment §50.05 contractor. 254-55, 245, 2d M. 62 Ill. Trucking W.M. 17, N. 22. E.2d

Standards used to determine the are not altered or affected by whether such status arises in context Workmen’s Compensation coverage of respondant superior. Gunterberg. law When and says bring calls the truck it seems to me that Rowley has special having interest employee Dixon Annot., transported Dubuque. 360, 350, 52 A.L.R. 2d 8 Am. (1957); §5 §630, (1963). also §568 Highway Automobiles Jur. Traffic Further, when (as the master furnishes transportation here by virtue the lease) there is an general rule which is as well established the rule itself and the may be deemed to be on duty during transportation. 86, Moyer, Kancevicius 88. I would reverse the of the trial court. LOMBARD, Petitioner,

VILLAGE OF v. POLLUTION CONTROL BOARD et

al., Respondents. (2nd Division) Second District No. 74-302 15, Opinion April Rehearing May filed denied 1976. 1976.