Johnson v. Pacific Intermountain Express Co.

WELLIVER, Judge,

dissenting.

I respectfully dissent. The Court today strains prior conceptions of vicarious liability in order to uphold plaintiffs’ judgment against defendants. Unquestionably, plaintiffs have suffered a tragic wrong, but it is apparent to me that the tortfeasor is not before the Court. While I emphathize with plaintiffs, I cannot subscribe to assessing tort “liability ... based on appearances, not on actualities.” Appearances have nothing to do with who caused or may have been responsible for plaintiffs’ injuries and damages. Because I cannot justify holding parties so remotely related to a negligent act responsible, I would reverse the judgment rendered against both Pacific Inter-mountain Express (P.I.E.) and Mario Transport Corp. (Mario).

The Court defends the judgment against P.I.E. on the basis of a contrived agency relationship imposed by the Court as a matter of policy, theoretically to promote the objectives of a federal regulatory scheme. We previously have interpreted the Interstate Commerce Commission (I.C.C.) regulations relied on in this case as imposing no greater degree of liability “than the carrier’s liability for the negligence of its driver when operating its own equipment.” Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524, 529 (Mo.1968). It is apparent that, despite its claims to the contrary, the majority has rejected the teaching of Brannaker and in its stead, has embraced a view that the court defined policy objectives underlying the regulatory scheme warrant imposing something resembling strict liability for trucking carriers.

I believe the majority’s decision is neither supported by the law of this state nor justifiable as a matter of policy. I believe we are compelled to look to the law of this state when determining whether P.I.E. is liable for the truck driver’s negligence. Our federal Constitution leaves to the control of state authorities the regulation of civil relationships of the type encompassed by the law of agency. Because of the absence of any state legislation modifying the relationship between P.I.E. and the truck driver involved in the accident, this Court should utilize this state’s common law of agency. It is clear that under the doctrine of respondeat superior this defendant could not be found liable.

The majority tacitly concedes this fact, but nevertheless affirms the judgment against P.I.E. for policy reasons. I do not believe it is desirable to hold interstate trucking carriers, such as P.I.E., liable under the circumstances of this case. The imposition of liability because of the presence of a placard on the truck will not encourage carrier-lessees to lease equipment from safer operators. Rather, it will lead only to stricter control of identification placards. This is not a valid reason for abandoning this state’s long established rules of agency.

The Court’s decision with respect to Mario is equally tenuous. We previously have described a joint venture as an “association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.” Bell v. Green, 423 S.W.2d 724, 731 (Mo. banc 1968), quoting 48 C.J.S. Joint Adventures § la. Bell further provides that “[a]s a general rule, in order to constitute a joint adventure, there must be a community of interest in the accomplishment of a common purpose, a mutual right of control, a right to share in the profits and a duty to share in the losses as may be sustained.” 423 S.W.2d at 731 . See also Howard v. Winebrenner, 499 S.W.2d 389, 396 (Mo.1973). I do not believe the evidence in the record supports the majority’s conclusion that Mario was participating in a joint venture as our prior decisions have defined that term.

In analyzing Mario’s culpability, it is necessary to understand the nature of its business. As a “freight broker,” Mario assisted *248 in locating available truckers for companies needing materials shipped. In return for a percentage of the shipping fee, Mario placed truckers in contact with its clients. Under this arrangement, Mario earned its fee upon obtaining a truck to haul the freight. While Mario may have had a commercial interest in seeing its client’s freight delivered, it had no legal interest at stake with respect to the fee once the trucker agreed to haul freight. Because Mario’s participation in the transaction ended at this point, the Court errs when it finds that “[t]he parties undertook a particular project, for mutual benefit and profit.” 662 S.W.2d at 241.

Nor do I see any basis whatsoever for the finding that Mario had an “equal right of control.” Id. at 241. There is positively no evidence in the record to support a conclusion that Mario, through the exercise of reasonable care, could have controlled the operation of the truck. On the contrary, the degree of autonomy with which the driver of the truck in this case chose his route convinces me that he acted as an independent contractor. The Court notes that “[t]his is not a situation in which Mario should be allowed to escape liability by asserting independent contractor status,” 662 S.W.2d at 242, citing Mario’s dealings with a trucker operating without proper I.C.C. registration. If the Court truly intends to assess tort liability on the basis of “appearances, not on actualities,” then I believe it is somewhat incongruous to state on the one hand that a truck bearing P.I.E.’s placard was thereby leased to P.I.E. at the time of the accident but that, on the other hand, the same truck bearing the same placard lacked I.C.C. certification at the time of Mario’s involvement with it.

The result reached by the majority cannot be viewed as other than basing liability for damages on the depth of the defendant’s pocket without regard to the degree of defendant’s fault.

I also concur in the dissent of DONNELLY, J.