Appendix — Ryder Truck Lines, Inc. v. Farmer

Supreme Court, U. S.

FILED

AUG 21980

1 MICHAEL ROVAK, JR., CLERK

wBQ=-2O4 |

—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

RYDER TRUCK LINES, INC., Petitioner

v.

HARRIS FARMER, Respondent

APPENDIX

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT FOR THE STATE OF GEORGIA

GEORGE L. POPE, JR.

771 Spring Street, N.W.

Atlanta, Georgia 30379

(404) 881-0844

Counsel for Petitioner,

Ryder Truck Lines, Inc.

APPENDIX

Ryder Truck Lines v. Harris Farmer

Notice of denial of motion for rehearing,

Supreme Court of Georgia

Decision of Supreme Court of Georgia

Notice granting the writ of certiorari,

Supreme Court of Georgia

Decision of Court of Appeals of Georgia

CLERK’S OFFICE, SUPREME COURT OF GEORGIA

DEAR SIR: ATLANTA 5/7/80

The motion for a rehearing was denied today:

Case No. 35883, Farmer v. Ryder Truck Lines, Inc., et al.

Yours very truly,

MRS. JOLINE B. WILLIAMS, Clerk

2-A

In the Supreme Court of Georgia

Decided: 4/22/80

35883. FARMER v. RYDER TRUCK LINES, INC., et al.

HILL, Justice.

Harris Farmer was totally disabled in an accident while driv-

ing a truck owned by Dan Martin. Martin owned four trucks

which were under an equipment lease to Hames Trucking

Company. Mr. Farmer was one of three truck drivers employed

by Dan Martin. Martin had no worker’s compensation insurance

in effect at the time of the accident.

Hames Trucking Company, headquartered in Clayton County,

Georgia, is authorized to haul exempt commodities only. Under

the terms of the equipment lease with Hames, Martin received

83% of the outbound shipping charge and Martin was entitled

to all revenue from return loads that were trip leased to a com-

mon regulated carrier. Martin was responsible for finding return

loads. Pursuant to the equipment lease, Martin was to furnish at

his expense “competent, qualified, licensed and experienced”

drivers who were to be the employees of Martin, but Hames re-

served the right to request removal of any unqualified driver.

Martin was to have exclusive control, direction, jurisdiction and

supervision of the drivers, with Hames only having the authority

to designate the destination of outgoing loads.

Upon delivering a load of exempt poultry to Chicago for

Hames Trucking Company, Farmer went to Ryder Truck Lines,

Inc., in Chicago and obtained a load of regulated commodities

for a return haul to Georgia. Farmer signed a trip lease agree-

ment as agent of the lessor (stipulated by the parties to be

Martin).

Under the terms of the trip lease agreement, the lessor

. (Martin) leased the tractor and trailer to Ryder under the

is

“direction and control of Ryder Truck Lines, Inc.” The tractor

and trailer were under the “exclusive possession, control, and

use” of Ryder, who assumed “full responsibility in respect to

the equipment it is operating to the public, the shippers, and all

regulatory bodies having jurisdiction.”’ The lessor was to pay the

driver’s salary and indemnify Ryder against any loss resulting

from the injury or death of the driver. Ryder retained authority

to transfer the shipment and handle it according to its best

judgment if Ryder deemed that the equipment was inadequate

for any reason.

Farmer was injured while driving the tractor leased to Ryder.

After the accident, Farmer filed a worker’s compensation claim

against Ryder and Hames Trucking Company. The administra-

tive law judge found ‘as a matter of fact that Ryder Truck Lines

and Hames Trucking Company were Farmer’s employers at the

time of the accident. He found that Ryder had the right to and

was legally required to maintain control over the truck and

driver under the trip lease agreement and under Interstate Com-

merce Commission regulations. He further found that Hames

Trucking Company maintained control of the truck and in so

doing necessarily maintained control of the driver with respect

to the outgoing trip. He held that the picking up of return

loads was part and parcel of the equipment lease entered into

between Hames Trucking Company and Martin. In return hauls,

Martin was lowering the cost to Hames of the outbound loads

by not returning empty, and thus the return haul was of mone-

tary benefit to Hames Trucking Company. The administrative

law judge found that at the time of the accident the truck was

being returned to Hames and held that under the provisions of

our worker’s compensation laws, the employer, Hames, could

not send an employee to a distant location and then deny any

responsibility for his return. He awarded Harris $95 per week

for the period of his incapacity.

Upon de novo review, the worker’s compensation board

reversed the award. The board found that Farmer had been

Operating the truck under the general supervision of Dan

Martin. It found no employee-employer relationship existed

i,

between Farmer and Ryder Truck Lines, Inc., or Hames Truck-

ing Company. The board held that the proper test to be applied

in determining the existence of an employee-employer relation-

ship is “whether the alleged employer had the right to control

the time, manner, and method of performance of the alleged

employee’s work duties, or whether the alleged employer as-

sumed such control, regardless of whether he had the right to

do so.” The board found that Hames Trucking Company

neither had the right to nor exercised any control over Farmer

on his return trip to Georgia. The board further found that

testimony of Ryder’s representative clearly indicated that the

language in the trip lease giving Ryder the right to control the

tractor and trailer referred to results to be accomplished and

was never understood to give Ryder the right to control Farmer

as to the time, manner, and method of his driving to Georgia.

Consequently, the board reversed the administrative law judge

(one director dissenting) and denied relief.

On appeal, the superior court affirmed. In a full court opin-

ion, the Court of Appeals affirmed, with two judges dissenting.

Farmer v. Employers Insurance of Wausau, 152 Ga. App. 608

(SE2d) (1979). The majority divided the right of control into

two dimensions, “ministerial control” and ‘operational con-

trol.” Ministerial control, reasoned the Court of Appeals, was

control over the driver, and operational control was control

over the equipment required by federal law and exercised by

Ryder for the protection of the freight and the public. The

Court of Appeals found that the driver and his expenses were

paid by Martin and that Ryder could not hire or replace the

driver.

One of our concerns in granting certiorari was the possible

applicability of the “statutory employer” provision of our

worker’s compensation law, Code Ann. section 114-112, in

light of Holt v. Travelers Ins. Co., 224 Ga. 857 (SE2d) (1979).

/1/ Ryder’s representative testified , inter alia, that during the trip lease,

Farmer was under the direction and control of Ryder.

=

That Code section is inapplicable here for the reason that no

claim for compensation was first instituted against the im-

mediate employer, Martin, as required by that section. We are

now concerned with whether the concept of ministerial and

operational control should be introduced into our worker’s

compensation law.

The name of the case has been changed from Farmer vy.

Employers Insurance of Wausau, et al., as it was in the Court of

Appeals, to Farmer v. Ryder Truck Lines, Inc., to more ac-

curately reflect the issue in the case. Employers Insurance of

Wausau insured Hames Trucking Company and we affirm the

judgment of thé Court of Appeals insofar as it held that Hames

Trucking Company was not Farmer’s employer at the time of

the accident.

Regulations of the Interstate Commerce Commission require

authorized carriers who lease equipment with drivers from

/2/ At common law, a master was and is !i2ble for torts committed by his

or her servant in the execution of the master’s business and within the

scope of the employment. 20 E.G.L. Master and Servant section 32. A

master is one who employs another to perform services and who controls

or has the right to control the physical conduct of the person employed

in the performance of those services. 20 E.G.L. Master and Servant sec-

tion 2.

When our worker’s compensation law was enacted, we adopted from

the laws governing vicarious liability the control test for determining

worker's compensation coverage. 29 E.G.L. Worker’s Compensation

section 18. “In determining whether or not the relationship of master

and servant prevails in a compensation case, the same principles that

exist under the common law obtain.” Travelers Insurance Co. v. Clark,

58 Ga. App. 115, 121 (197 SE 650) (1938). Hence, when we define

which persons are employees for worker’s compensation purposes, we

may at the same time be defining which persons are servants for tort

liability purposes.

Thus, when Ryder accepted full responsibility to the public in re-

spect to the equipment it was operating, it accepted at least partial re-

sponsibility for Farmer’s negligent injury, if any, to a member of the

motoring public. See Walter v. Dunlap, 368 F2d 118 (3rd Cir. 1966).

-4-

owners to issue receipts identifying the equipment, and specify-

ing the date and time on which the lease begins and when it

ends. The lease must provide that the lessee have exclusive

possession, control, and use of the equipment for the duration

of the lease, and that the lessee assume complete responsibility

for the operation of the equipment for the duration of the

lease.

It may be argued that Farmer was an independent contractor

as to Ryder, in that Ryder had only the right to require certain

results in conformity with the contract and that Ryder did not

have the right to control the time, manner and method of

executing the work. Because there was no direct contract

between Ryder and Farmer, their relationship to each other

must be ascertained from the trip lease agreement between

Ryder and Martin.

Under the trip lease in question the tractor and trailer were

under the direction and control of Ryder. The driver went

with the equipment. Ryder controlled the delivery of the goods.

Ryder told Farmer where and when to pick up the load. Farmer

was allowed to choose which of the ICC approved routes he

would travel but Ryder then adopted that route and told Farmer

not to deviate from it. Ryder told Farmer where and when to

deliver the load. These are pertinent factors to be considered in

determining whether Ryder had control over Farmer as to the

return trip.

In Ratliff v. Liberty Mutual Ins. Co., 149 Ga. App. 211

(253 SE2d 799) (1979), the court found the driver of a leased

/3/ See generally 49 CFR sections 1057.11, 1057.12, formerly 49 CFR

section 1057.4. Pursuant to 49 USCA section 304(e), the ICC is authoriz-

ed to prescribe such regulations governing motor carriers using non-

owned vehicles as necessary to assure that such carriers will have full

direction and control of such vehicles and will be responsible for the

operation thereof as if they were the owners.

/4/ The lease involved in Montgomery Trucking Co. v. Black, 231 Ga.

211 (200 SE2d 882) (1973), was not subject to, or did not comply with,

the ICC regulations applicable here.

-5-

tractor to be an employee of the lessee for worker's compensa-

tion purposes notwithstanding the fact that the “employer”

leased the rig rather than owned it.

Ryder argues that it did not hire and could not fire Farmer.

However, it could have declined to enter into this trip lease

with Farmer as driver, and it could terminate the haul by trans-

ferring the shipment if it deemed the equipment to be inade-

quate for any reason. It is true that it was Martin who actually

hired, paid and could fire Farmer. Ryder on the other hand

could effectively do much the same thing and it controlled the

details of the loading, the route and the unloading of the ship-

ment even to the exclusion of Martin.

“Under general legal principles, it is well settled that the fact

that an employee is the general servant of one employer does

not prevent him from becoming the particular servant of

another under special circumstances, and it is true, as a general

proposition, that when one person lends or hires his servant

to another for a particular employment, the servant, as to any-

thing done in such employment, must be dealt with as the

servant of the person to whom he is lent or hired, although he

remains the general servant of the other. person. In actions at

common law, to recover damages alleged to have been caused

by the servant of the defendant, the criterion by which to

determine whether the relation existed as alleged is to ascertain

whether, at the time of the injury, the alleged servant was sub-

ject to the defendant’s orders and control and was liable to be

discharged by him for disobedience to orders or for misconduct.

[Citations omitted.] The same rules have been held to be ap-

plicable in determining the existence or non-existence of the

relation of employer and employee in cases arising under

compensation acts.” United States Fidelity and Guaranty Co.,

et al, v. Stapleton, et al., 37 Ga. App. 707, 710 (141 SE 506)

(1928). The Stapleton case, supra, involved the driver of a

truck leased to a construction company. There it was held

that the construction company was the employer of the bor-

rowed servant for worker’s compensation purposes notwith-

standing the fact that the driver’s wages were not paid to him

-6-

directly from the construction company.

Ryder argues that the better reasoned view is expressed in

Tretter v. Dart Transit Co., 135 NW2d 484 (271 Minn. 131)

(1965). There the owner leased his tractor to be driven by him-

self to a certified common carrier pursuant to a one year lease

containing control provisions similar to the trip lease involved

here. The driver died in an accident and the Minnesota Supreme

Court denied his widow’s claim for worker’s compensation. The

fact that the driver was the lessor-owner of the tractor makes

that case different from this one insofar as the loaned servant

doctrine is concerned. Moreover, the Minnesota court acknowl-

edged that the ICC regulations, as drawn, do not mandate that

a driver of a leased vehicle be, or negate that the driver is, the

employee of the lessee.

The decision of the United States Supreme Court on which

the Court of Appeals relied for the distinction between minis-

terial and operational control, Transamerican Freight Lines, Inc.

v. Brada Miller Freight Systems, Inc., 423 U.S. 28 (96 SC 229,

46 LE2d 169) (1975), involved the validity of an indemnifica-

tion provision in a trip lease, in view of tne ICC regulations and

aS against a public policy challenge, whereby the lessor agreed

to indemnify the lessee for claims arising out of the lessor’s

negligence. The Supreme Court upheld the validity of the in-

demnification provision. In passing, the Court observed that the

lessor’s furnishing of the driver allows ‘tan aspect of control, in

a sense, to remain in the lessor” (423 U.S. at 39). The Court

described the lessor’s control over the driver as ministerial and

the lessee’s control as “operating authority” and “that ultimate

control in the lessee which makes and keeps it responsible to

the public, the shipper, and the Commission” (423 U.S. at 39,

emphasis supplied). Thus, the Supreme Court considered the

lessee’s control to predominate over the lessor’s.

In White v. Excalibur Ins. Co., 599 F2d 50 (Sth Cir. 1979),

Crawford leased his trucks with drivers to Superior Trucking

Co., an ICC motor carrier. One of these drivers was killed. His

mother sued Superior in tort and then sued Superior’s insurance

company on the judgment in district court. The circuit court

iv

held that the deceased was an employee of Superior within the

meaning of 49 USC section 304(e), supra, and that as the em-

ployer, Superior was immune to suit in tort but was subject to

Georgia’s worker’s compensation act. Construing federal law,

the court said (S99 F2d at 54): “Because Congress has created

the statutory employee status, and, as we have concluded, the

carrier-lessee is deemed an ‘employer for purposes of the

Georgia Workmen’s Compensation Law, the Georgia cases deal-

ing with independent contractors are not applicable.”

We find that the Court of Appeals erred insofar as Ryder

Truck Lines, Inc., is concerned in dividing control into two

parts for worker’s compensation purposes. We find further that

the Worker’s Compensation Board erred in failing to recognize

the right of control given Ryder in the trip lease, as opposed to

the testimony of Ryder’s a interpreting that lease

contrary to its terms.

On the other hand, the terms of the equipment lease between

Martin and Hames Tmcking Company clearly show that Hames

Trucking Company exercised no control over Martin’s drivers

regarding return hauls of regulated commodities and Hames

Trucking Company thus was not an employer of Farmer at the

time of the accident.

Judgment affirmed in part, reversed in part. All the Justices

concur, except Jordon, P.J., who concurs in the Judgment

only.

CLERK’S OFFICE, SUPREME COURT OF GEORGIA

ATLANTA © January 9, 1980

Dear Sir:

Case No. 35883. HARRIS FARMER V. EMPLOYERS

INSURANCE OF WAUSAU ET AL.

The Supreme Court today GRANTED the writ of certiorari

in this case. All the Justices concur, except Jordan, Bowles

and Marshall, J. J., who dissent.

THIS CASE WILL BE ASSIGNED TO THE MARCH 1980,

ORAL ARGUMENT CALENDAR.

The Court is particularly concerned with the following:

The applicability to this case of the “statutory employer”

provision (Code Ann. section 114-112) in light of Holr y.

Travelers Insurance Company, Case No. 35094, decided 12-

05-79.

Briefs filed in the Court of Appeals are included in the

record presented to this court. Additional briefs are not re-

quired but may be submitted.

Very truly yours,

Mrs. Joline B. Williams, Clerk

NOV 30 1979

57856. FARMER v. EMPLOYERS INSURANCE OF WAUSAU,

et al.

UNDERWOOD, Judge.

In this workers’ compensation proceeding it was determined

that claimant suffered compensable injuries arising out of and in

the course of his employment as a truck driver with Ryder

Truck Lines, Inc. and Hames Trucking Company. On appeal to

the full board, and upon de novo consideiation of all the evi-

dence. the board determined, with one director dissenting, that

‘Hames Trucking Company neither had the right to nor exer-

cised any control over claimant in reference to his trip back

into Georgia . . .” The board also determined that the language

of the “trip lease” entered into by Ryder and Dan Martin, the

owner of the tractor in question, refers to results to be ac-

complished and was “never understood to give Ryder the right

to control claimant as to the time, manner, and method of his

driving their trailer to Georgia.” The board then concluded that

‘no employer-employee relation existed between claimant” and

the two trucking concerns, and the claim was denied. On appeal

to the superior court the denial was affirmed. Claimant appeals;

we likewise affirm.

As noted above, the tractor which claimant was driving was

owned by Dan Martin, who leased considerable trucking equip-

ment (tractors and trailers) to Hames Trucking, Inc. The agree-

ment between Martin and Hames as to the leased equipment

provided that return loads “from without the State of Georgia

to some destination within the State of Georgia” were the

“sole responsibility of [Martin] who shall be entitled to all

revenue for loads that are trip leased to a common regulated

carrier.” The contract called for Martin “to furnish at his

expense, competent, qualified, licensed and experienced opera-

tors to operate said leased equipment” who were to be the

employees of Martin, and he was to be solely responsible for

_

the “compensation, selection, supervision and control of said

operators,” although Hames would have the right to request

Martin to replace any operator who “may not be qualified.”

Another provision of the lease stated that “the operators of said

equipment shall be under the exclusive control, direction, juris-

diction and supervision of [Martin]. [Hames] shall only have the

authority to designate the destination of outgoing loads.”

The record reveals that the claimant driver hauled for Martin

a load of poultry from Georgia to Chicago. As is common prac

tice, the driver then located a regulated carrier, Ryder, which

had a trailer that needed to be delivered to Georgia on the return

trip. The driver, representing Martin, signed as agreement with

Ryder, referred to as a “one-way trip lease,” providing for the

transportation of goods in interstate commerce “under the

direction and control of Ryder Truck Lines, Inc.” The lease

stated that “the leased equipment under this agreement is in the

exclusive possession, control, and use of the authorized Lessee

[Ryder] and that the Lessee assumes full responsibility in

respect to the equipment it is operating to the public, the ship-

pers, and all regulatory bodies having jurisdiction. It is agreed

that Lessor [Martin] will carry acceptable Public Liability and

Property Damage Insurance.” It further provided that Martin

was responsible for the maintenance of the tractor, payment of

the driver and payment for any citations or fines received by

him.

During the return trip from Chicago an accident occurred in

which the driver received permanent injuries. He subsequently

filed this claim seeking workers’ compensation contending he

was an employee of Ryder and Hames at the time of the acci-

dent.

1. The issue in this case is whether the “control” provisions

of a “trip lease’’ agreement, pursuant to which the owner of a

tractor unit leases such unit to a regulated carrier for a single

trip to deliver a single trailer of freight, makes the driver an em-

ployee of the regulated carrier for purposes of determining

workers’ compensation coverage. It is urged that because

applicable federal legislation, 49 U.S.C.A. section 304, requires

e De

that the equipment in a trip lease arrangement be under the

control of the regulated carrier, the driver becomes an employee

of the regulated carrier for the term of the lease, i.e., during the

One-way trip.

This, we believe, is an unnecessarily narrow, one-dimensional

test for determining whether there exists an employee-employer

relationship and ignores some practical aspects of a trip-lease

transaction. It also goes beyond the public purpose which

Congress sought to serve in mandating that the regulated carrier

exercise “control” in a trip-lease situation. The United States

Supreme Court, while not addressing the question presented in

this case, has dealt with the background and purpose of the

“control and responsibility” provisions of 49 U.S.C.A. section

304 in Transamerican Freight v. Brada Miller Freight Systems,

423 U.S. 28 (1975). In that case the Court recognized the

distinction between operational control concerning the equip-

ment and other aspects of the shipment and ministerial control

concerning the driver. “It is to be acknowledged, to be sure,

that the lessor’s furnishing of a driver allows an aspect of

control, in a sense, to remain in the lessor. But this is ministerial

control, not control of the kind with which the Commission

was concerned [in promulgating regulations under the legisla-

tion] . . . Its concern .. . was with operating authority, with

routes and destinations and classes of freight, with the integrity

of certifications, and with that ultimate control in the lessee

that makes and keeps it responsible to the public, the shipper,

and the Commission.” Transamerican Freight v. Brada Miller

Freight Systems, supra, at p. 39.

Our conclusion is that the ’control” provisions which were

included in the written lease pertaining to this “trip lease’’ were

mandated by Congress to make the regulated carrier responsible

for damages to the freight during shipment and to provide other

protections to the public whom the carrier has been authorized

to serve. We can find no persuasive indication that these provi-

sions were intended to affect the “ministerial” aspects of the

relationship between the lessor and the driver, or to make the

driver an employee of the regulated carrier. Ryder could not

a

fire the driver or replace him with another driver. The driver

was paid by Martin who also paid for all expenses of the trip.

The nature of the relationship between the claimant and Ryder

does not satisfy our prior standards for finding an employment

relationship. Sanders Truck Co. v. Napeier, 117 Ga. App. 561

(161 SE2d 490) (1968); Pilcher v. Wise Electric Co., 129 Ga.

App. 92 (198 SE2d 713) (1975).

2. As Hames was clearly not claimant’s employer with respect

to this occurrence, the board properly denied compensation as

to it.

Judgment affirmed. Deen, C. J., Quillian, P. J., Smith,

Shulman, Birdsong and Carley, J. J., concur. McMurray, P. J.,

and Banke, J., dissent.

57856. FARMER v. EMPLOYERS INSURANCE OF WAUSAU,

et al.

McMURRAY,. Presiding Judge, dissenting.

This is a workers’ compensation case in which claimant was a

truck driver injured in a highway collision while in the course of

his employment. He was driving a tractor trailer in which he was

transporting goods in interstate commerce. Without doubt he

was the employee of someone.

The issue here is to determine which of three concerns were

his employer or employers. The truck which he was driving was

owned by Dan Martin who leased considerable trucking equip-

ment (tractors and trailers) to Hames Trucking, Inc. The lease

agreement as to the tractor in question which claimant was driv-

ing was executed by “Hames Trucking, Inc.,” by C. Scott Hames,

Lessee. It involved shipment of goods known as ‘outgoing

loads.” With reference to return loads “from without the State

of Georgia to some destination within the State of Georgia,”

this became the “sole responsibility of Lessor who shall be

entitled to all revenue for loads that are trip leased to a common

regulated carrier.” If there were return loads of exempt com-

modities, same were to be in the name of “Hames Trucking,

Inc.” and covered by liability and cargo insurance only when

lessee was notified in advance of shipment with cost to lessee.

This contract called for the lessor “to furnish at his expense,

competent, qualified, licensed and experienced operators to

operate said leased equipment.” Said operators were to be the

employees, agents and/or servants of the lessor who was to be

solely responsible for the “compensation, selection, supervision

and control of said operators,” although the lessee would have

the right to request the lessor to replace any operator “which

may not be qualified.” Another division of that lease stated un-

equivocally that, “the operators of said equipment shall be under

the exclusive control, direction, jurisdiction and supervision of

Lessor. Lessee shall only have the authority to designate the

destination of outgoing loads.”

a

However, at the time in question when the driver was injured

he had transported for Hames Trucking, Inc. a load of “exempt

commodities” (chickens) from metropolitan Atlanta to Chicago.

A contract was then executed with Ryder Truck Lines, Inc., as

lessee, and “Hames Trucking Co. . . send check to Dan Martin”

for the transportation of goods in interstate commerce from

Deerfield, Illinois to Atlanta, Georgia, “‘under direction and

control of Ryder Truck Lines, Inc.” (Emphasis supplied.) This

lease clearly stated that, “the leased equipment under this agree-

ment is in the exclusive possession, control, and use of the

authorized carrier Lessee and that the Lessee assumes full

responsibility in respect to the equipment it is operating to the

public, the shippers, and all regulatory bodies having jurisdic-

tion. It is agreed that Lessor will carry acceptable Public Liability

and Property Damage Insurance. Lessor agrees to reimburse and

otherwise indemnify Lessee for any and all losses sustained by

Lessee resulting from the use of the aforesaid equipment.”

(Emphasis supplied.)

The worker’s claim was filed against Ryder Truck Lines, Inc.

and Hames Trucking Company and their respective insurers.

The administrative law judge, hearing the case and based on the

above leases, as well as other evidence, made a determination

that the injuries sustained were accidental and covered by work-

ers’ compensation while arising out of and in the course of his

employment with Ryder Truck Lines, Inc, and Hames Trucking

Company.

On appeal to the full board and upon de novo consideration

of all evidence the board determined, with one director dissent-

ing, that “Hames Trucking Company neither had the right to

nor exercised any control over claimant in reference to his trip

back into Georgia. . .” The board also determined that the

language of the trip lease refers to results to be accomplished

and “were never understood to give Ryder the right to control

claimant as to the time, manner, and method of his driving their

trailer to Georgia.” The board then concluded that “no em-

ployer-employee relation existed between claimant” and the

two trucking concerns, and the claim was denied. On appeal to

-6-

aad

the superior court the denial was affirmed. The majority affirms.

To this I cannot agree for the following reasons.

1. Based upon the evidence and the law of Georgia with refer-

ence to employee status there is no doubt that the claimant was

in the employ of Ryder Truck Lines, Inc. shown in the award

and in the hearing since the truck was involved in interstate

commerce subject to the laws and regulations of the Interstate

Commerce Commission in effect on November 8, 1977. Neither

the superior court nor the board was in errorin denying the claim

as to “Hames Trucking, Inc.” (Hames Trucking Company) as this

trucking concern hauls only exempt products and is, therefore,

not subject to Interstate Commerce Commission regulations. See

Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410

(224 SE2d 65); American Motorists Insurance Company v.

Brown, 128 Ga. App. 813 (198 SE2d 348); Fidelity & Casualty

Company of New York v. Windham, 209 Ga. 592, 593 (74 SE2d

835); Hodges v. Doctors Hospital, 141 Ga. App. 649, 653 (234

SE2d 116); Bibb Manufacturing Co. v. Martin, 53 Ga. App. 137

(185 SE2d 137).

2. The trip lease prepared by Ryder Truck Lines, Inc. and

introduced by it to define the relationship between the claimant

and Ryder Truck Lines, Inc. shows unequivocally that the leased

vehicle (tractor and trailer) was, “under direction and control of

Ryder Truck Lines, Inc. ..,” as the carrier from Deerfield, Illinois

to Atlanta, Georgia. Not only was the tractor and trailer under

Ryder’s control, but the law and regulations as well as the

contract gave it exclusive possession, control and use as the

authorized carrier lessee which assumed full responsibility in

respect to the equipment. It thus had the right to control the

manner and means of the work performed by the claimant to

such as extent to create an employer/employee relationship.

See Montgomery Trucking Company, Inc. v. Black, 231 Ga. 211,

213 (200 SE2d 882); Blair v. Smith, 201 Ga. 747 (41 SE2d

133); American Casualty Company v. Harris, 96 Ga. App. 720

(101 SE2d 618); Liberty Mutual Insurance Company v. Kinsey,

65 Ga. App. 433 (16 SE2d 179); Ratliff v. Liberty Mutual

Insurance Company, 149 Ga. App. 211, 212 (3) (253 SE2d

A.

799); Golosh ». Cherokee Cab Company, 226 Ga. 636 (176

SE2d 925). The law requires and demands that the equipment

engaged in interstate commerce be under the exclusive custody

and control of the carrier. 49 USCA section 304 (since repealed

in part October 17, 1978). Consequently, the claimant was the

driver of the carrier, regardless of any arrangement that the car-

rier had with the lessor as to the equipment, payment of the

driver or other indemnification agreement with respect to same.

See Dove v. National Freight, Inc., 138 Ga. App. 114, 116 (4)

(225 SE2d 477): T. G. Stegall Trucking Company v. Tower

Lines, Inc., 135 Ga. App. 286, 287 (2) (217 SE2d 488). Com-

pare Mitchell v. Burden ‘Brothers, Inc., 126 Ga. App. 75 (189

SE2d 909); Farmers Mutual Exchange of Commerce, Inc. v.

Sisk, 131 Ga App. 206 (205 SE2d 438); Flowers v. U.S.S.

Agri-chemicals, 139 Ga. App. 430 (228 SE2d 392).

The denial of the claim has been made on the erroneous legal

theory that the claimant could not have been an employee of

the carrier since the tractor was owned and operated by another

leased to that carrier. By law the carrier has been required to

assume control of the manner, means and handling of this trac-

tor trailer involved in interstate commerce. The superior court,

as well as the board, erred in determining there was no employee/

employer relationship between the claimant and the carrier

(Ryder Truck Lines, Inc.). Barbree v. Shelby Mutual Insurance

Company, 105 Ga. App. 186, 188 (123 SE2d 905); Miller v.

Travelers Insurance Company, 111 Ga. App. 245, 248 (141

SE2d 223); Thomas v. Ford Motor Company, 123 Ga. App. 512

(181 SE2d 874); Fleming v. United States Fidelity & Guaranty

Company, 137 Ga. App. 492 (2) (224 SE2d 127).

I therefore respectfully dissent. | am authorized to state that

Judge Banke joins in this dissent.