Petition — Pacific Intermountain Express Co. v. Johnson

Supreme Court brief1984

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i 1 5 57 r LED US

No. MAR 19 |994

ALEXANDER L. STEVas.

CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

CATHY JEAN JOHNSON and

THOMAS Ray Boatz JOHNSON and

REBECCA Joyce JOHNSON,

by their next friend,

CATHY JEAN JOHNSON,

Respondents,

VS.

Pacific INTERMOUNTAIN ExpRESS COMPANY,

Petitioner.

On Writ Of Certiorari To The Supreme Court Of Missouri

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF MISSOURI

HAROLD J. FISHER

Counsel of Record

for Petitioner

JOHN E. Price

Co-Counsel for Petitioner

Woo sey, FISHER, WHITEAKER,

McDona_Lp & ANSLEY

P.O. Box 1245, S.S.S.

Springfield, Missouri 65805

Telephone: 417/869-0581

A Ne SR A RR NO NR A a

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTION PRESENTED FOR REVIEW

The Supreme Court of Missouri, by a 4 to 3 decision, has in-

terpreted the Interstate Commerce Commission regulation

governing truck leasing, 49 C.F.R. Section !057.4 (1978), as im-

posing tort liability upon petitioner, a regulated motor carrier,

for the negligent acts of a driver of a leased truck after expira-

tion of the lease, solely by virtue of the continued presence on

the truck of petitioner’s identifying placard at the time of an ac-

cident. The court imposed vicarious liability despite the un-

disputed fact that the driver was no longer serving petitioner’s

business interests nor hauling freight for petitioner, but was on

a mission for another shipper. Does such an interpretation of

the regulation deny to petitioner its right to be treated as if it

were an owner of the leased truck under the provisions of the

governing federal statute, the Motor Carrier Act (49 U.S.C.

Section 11107(a)(4)(Supp. 1983)), in that petitioner as an owner

of the truck could be held liable for the negligent acts of a driver

only if the driver were acting within the scope and course of his

employment for petitioner? Does such an interpretation of the

regulation draw into question the Constitutional validity of the

federal regulation due to this conflict with the governing statute,

or deny to petitioner the immunity from tort liability for the

unauthorized acts of a driver of leased equipment granted to

petitioner by the Motor Carrier Act?

STATEMENT OF INTERESTED PARTIES

Petitioner herein was a defendant-appellant and respondents

were plaintiffs-respondents in the Supreme Court of Missouri.

In addition, Marlo Transport Corporation was an additional

defendant-appellant in the Supreme Court of Missouri. On

January 10, 1984, Marlo Transport corporation partially

satisfied the judgment rendered in favor of respondents below,

and petitioner has filed a Statement of Non-Interest of Party as

to Marlo Transport Corporation with the Clerk of this Court in

accordance with Supreme Court Rule 19.6.

ili

TABLE OF CONTENTS

ie 6k kts paces bees seeee

Statement of Interested Parties .....................

Reference to Official Report of Opinion Below ........

Citations to Constitutional Provisions, Federal Statutes

and Federal Regulations Involved...............

Reasons For Granting The Writ .....................

The Missouri Supreme Court’s inter-

pretation Of the I.C.C. Truck Leasing

Regulation Denies To Petitioner Its

Rights Under The Motor Carrier Act To

Be Treated Like An Owner Of The Leas-

ed Truck, And Its Immunity From Tort

Liability Under The Motor Carrier Act

For The Unauthorized Acts Of A Driver

After Expiration Of A Lease ..........

The Petition For Writ Of Certiorari

Should Be Granted To Resolve The

Widespread Conflict In The Interpreta-

tion Of The Motor Carrier Act And The

I.C.C. Truck Leasing Regulation Ex-

isting Under The Decisions Of The

Missouri Supreme Court In This Case,

Other State Courts Of Last Resort and

Several Federal Circuit Courts Of Ap-

Ill. The Petition For Writ Of Certiorari

Should Be Granted To Resolve The Issue

Of The Validity, Under Article I, Section

1 Of The United States Constitution, Of

The I.C.C. Truck Leasing Regulation

Created By The Decision Of The

Missouri Supreme Court Below. .......

IV. The Petition For Writ Of Certiorari

Should Be Granted To Resolve The Con-

flicting Interpretations Of The Motor

Carrier Act And The I.C.C. Truck Leas-

ing Regulation, To Provide Guidance

For The Motor Carrier Industry And

Protection To The Travelling Public... .

Appendix A, Opinion of Missouri Supreme Court .....

Appendix B, Opinion of District Court of Appeals.....

Appendix C, Judgment of the Circuit Court ..........

Appendix D, Missouri Supreme Court Order Denying

Pe EI Oss ca cuencacaenncuacase

Appendix E, Statute 28 U.S.C. Section 1257(3) (1976) ..

Appendix F, Statute 29 U.S.C. Section 10526(a)(6)(B)

RES ir ee ctr A ANE pies Spinnin

Appendix G, Statute 49 U.S.C. Section 11107(a)(Supp.

eee cosh i I Bg A rece a

Appendix H, Statute 49 U.S.C. Section 11101(c)(2)

Ss ENC idh op anie cna eo vate theuessatecernn

Appendix I, I1.C.C. Truck Leasing Regulation.........

A-l

A-22

A-50

A-51

A-52

Appendix J, Excerpts from Respondent’s Voir Dire

RR ee ate rs ee ee

Appendix K, Excerpts from Trial Proceeding .........

Po rer ree

Appendix M, Excerpt from Petitioner’s Motion for a

Pe Cees ee CN GUN on oc cn viscccsscesscus

Appendix N, Excerpts from Respondents’ Brief in

the Missouri Court of Appeals .................

Appendix O, Excerpts from Petitioner's Reply Brief

in Missouri Court of Appeals ..................

Appendix P, Excerpts from Petitioner’s Application

for Transfer to Missouri Supreme Court .........

Appendix Q, Excerpts from Petitioner’s Supplemental

Brief in Missouri Supreme Court ...............

Appendix R, Excerpts from Respondents’ Brief in

Missouri Supreme Court .......ccccscccccssees

Appendix S, Petitioner’s Motion for Rehearing .......

A-56

A-57

A-58

A-59

A-60

A-62

TABLE OF AUTHORITIES

Cases:

American Transit Lines v. Smith, 246 F.2d 86 (3d Cir.

ee ng ke OtuVene nesses ee

American Trucking Associations v. United States, 344

ss cr kk ba tueccecesceescs

Brannaker v. Transamerican Freight Lines, Inc. 428

es ccm en cbascececeecescs

Cosmopolitan Mutual Insurance Company v. White,

, , BOWED wc ddesecceccccccss

Cox v. Bond Transportation, Inc., 53 N.J. 186, 249

accu eceesonntiesees

Department of Banking of Nebraska v. Pink, 317 U.S.

Lees cence eeba seb enncecsewe aaa

Duke v. Thomas, 343 S.W.2d 656 (Mo. App. 1961) ....

Felbrant v. Able, 194 A.2d 491 (N.J. 1963) ...........

Gackstetter v. Dart Transit Company, 130 N.W.2d 326

gE EE Ee ee

Henderson Bridge Company v. City of Henderson,

EERE NRE ee

Hewitt-Robbins, Inc. v. Eastern Freight-Ways, Inc.,

Ne cece eetusevesecens

Hodges v. Johnson, 52 F.Supp 488 (W.D. Va. 1943) ...

Honeyman v. Hanan, 300 U.S. 14, 18 (1936) ..........

Illinois Steel Company v. Baltimore and Ohio Railroad

Company, 327 U.S. 508 (1944) ..............6..

Page

vii

Ivanhoe Irrigation District v. McCracken, 357 U.S. 275

OLB) arti 4 A ee

Johnson v. Pacific Intermountain Express Company,

662 S.W.2d 237 (Mo. banc 1983)............005

Kaplan Trucking Company v. Lavine, 253 F.2d 254 (6th

eco wah eke pe sv cbe sees oe

Kreider Truck Service, Inc. v. Augustine, 76 Ill. 2d 535,

SE DE PENDUUD sc ac ccsdcccccccccsacescs

Leotta v. Plessinger, 8 N.Y.2d 449, 171 N.E.2d 454

RA kee pe iNedesavdnasteseeneues

Mellon National Bank and Trust Company v. Sophie

Lines, 289 F.2d 473 (3d Cir. 1961).........ceeees

Missouri Pacific Railroad Company v. Elmore & Stahl,

i a ck palcabays eves

Pennsylvania Railroad Company v. Sonman Shaft Coal

Company, 242 U.S. 120, 123-124 (1916) .........

Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983) .....

Schedler v. Rowley Interstate Transportation Company,

ED GEE Os BOE s viv wccaccsccccsscccse

Schmidbauer v. Baltimore & Pittsburgh Motor Express

Company, 228 Md. 637, 181 A.2d 325 (1962) .....

Simmons v. King, 478 F.2d 857 (Sth Cir. 1973) ........

Transamerican Freight Lines, Inc. v. Brada Miller

Freight Systems, Inc., 423 U.S. 28 (1975).........

United States v. Oregon, 366 U.S. 643 (1961)..........

Wellman v. Liberty Mutual Insurance Company, 496

os ees cicvdieenesece ces

19, 21

viii

Wilcox v. Transamerican Freight Lines, Inc., 371 F.2d

Es SE inc cc dvdcrebacencieteacasae 21

Wilko v. Swan, 346 U.S. 427 (1953)... 0... 0... e eee 4

Zacchani v. Scripps-Howard Broadcasting Company,

ey. Sy ee a ros 5

Constitutional Provision:

A RR | ere rer ry 2, 5, 26

Federal Statutes:

BB U.S.C, BOO TAS TOI) nc csc snccccccecenes y

y ie eee | i Beer eer error re 2

49 U.S.C. Section 10526(a)(6)(B)(Supp. 1983) ......... 5,9, 27

49 U.S.C. Section 11101(c)(2)(Supp. 1983)............ 5

49 U.S.C. Section 11107(a)(Supp. 1983) ........... em Fo.

Federal Regulation:

SG. SUPT NTED 5k va vcdevceedasecves 2, 3, 6, 8, 18

Court Rules:

United States Supreme Court Rule 17.1(b)............ 21

United States Supreme Court Rule 20.4 .............. 2

Missouri Rule of Civil Procedure 84.17............... 2

Miscellaneous Authorities:

Sen. Rep. No. 1271, 84th Cong. First Sess. at 1-3 (1955) 20

H.R. Rep. No. 2425, 84th Cong., 2d Sess. at 2-4 (1956) . 20

— 1X —

Ex Parte Mc-43, Lease and Interchange of Vehicles

by Motor Carriers, 51 M.C.C. 461, 52 M.C.C. 674,

64 M.C.C. 361, 68 M.C.C. 553, 79 M.C.C. 65, 79

M.C.C. 251, 84 M.C.C. 297, 86 M.C.C. 525...... 20

Ex Parte MC-41 Identification of Motor-Carrier

Vebictee. 135 CFs Gees os si cass pon eewenewes 20

Trinc’s Blue Book of the Trucking Industry (1981 ed.),

published by Trinc’s Transportation Consultants,

WOUUM, Ws) ci cccvnewiscvcuabicuneweeueeeee 26

No.

In THE

Supreme Court of the United States

OctoBerR TERM, 1983

CaTHY JEAN JOHNSON and

THOMAS Ray Boatz JOHNSON and

REBECCA Joyce JOHNSON,

by their next friend,

CaTtHy JEAN JOHNSON,

Respondents,

vs.

PaciFic INTERMOUNTAIN Express COMPANY,

Petitioner.

On Writ Of Certiorari To The Supreme Court Of Missouri

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF MISSOURI

REFERENCE TO OFFICIAL REPORT

OF OPINION BELOW

The Opinion of the Supreme Court of Missouri in Johnson v.

Pacific Intermountain Express Company is reported at 662

S.W.2d 237 (Mo. banc 1983) (4-3 decision), as modified on

denial of rehearing, December 20, 1983.

ast con

JURISDICTIONAL STATEMENT

This Petition for Writ of Certiorari is brought to review the

judgment and majority Opinion of the Supreme Court of

Missouri, initially entered in this case on November 22, 1983. A

timely Motion for Rehearing was filed by petitioner in the

Supreme Court of Missouri on December 7, 1983, within fifteen

days of the entry of the judgment as provided by Missouri Rule

of Civil Procedure 84.17. The Supreme Court of Missouri

entered its order overruling petitioner’s Motion for Rehearing

and filed its modified Opinion on December 20, 1983. This

Petition for Writ of Certiorari is, therefore, timely filed within

ninety days following the order overruling petitioner’s Motion

for Rehearing in the court below, pursuant to 28 U.S.C. Section

2101(c) (1976) and United States Supreme Court Rule 20.4.

Department of Banking of Nebraska v. Pink, 317 U.S. 264

(1942).

Jurisdiction of this Court is based upon the provisions of 28

U.S.C. Section 1257(3) (1976). Petitioner contends that the

judgment and Opinion of the Supreme Court of Missouri denies

to petitioner its right to be treated as if it were an owner of a

leased truck for purposes of civil tort liability, and abridges peti-

tioner’s immunity from civil tort liability for the unauthorized

acts of a driver of a leased truck pursuant to the Motor Carrier

Act (49 U.S.C. Section 11107(a)(Supp. 1983)). The judgment

below, which creates an undeniable conflict between the provi-

sions of the Interstate Commerce Commission regulation gover-

ning truck leasing, 49 C.F.R. Section 1057.4 (1978), a: ' this

section of the Motor Carrier Act also draws into question the

validity of the federal regulation under Article I, section | of the

United States Constitution.

The existence of these federal questions is established upon

the face of the majority Opinion of the Supreme Court of

Missouri filed December 20, 1983 (see Appendix A). In the

courts below, petitioner contended that respondents’ jury in-

struction number 7 failed to submit an essential element of

a eee

respondents’ case under the state law of Missouri: That the

driver who caused respondents’ damage was acting within the

scope and course of an employment for petitioner at the time of

the accident. The Missouri Supreme Court’s Opinion, relying

on the federal regulation noted above, ruled that the scope of

employment issue was not an element of respondents’ case and

was not required to be submitted to the jury. Citing the In-

terstate Commerce Commission (hereinafter referred to as

1.C.C.) regulation on truck leasing, 49 C.F.R. Section

1057.4(d)(1) (1978), the Missouri Supreme Court held that the

mere presence of petitioner’s identifying placard on the truck at

the time of the accident was sufficient to impose vicarious

liability upon petitioner for the driver's negligence, even though

the placard was allegedly furnished to the driver for a previous

lease but was not retrieved by petitioner at the end of that lease.

At page 19 of the majority Opinion, the Missouri Supreme

Court stated that:

The conclusion we reach is based upon statutory policy

rather than a conventional respondeat superior theory. It

is based on the failure to comply with an explicit provision

of the governing regulations .. .

(662 S.W.2d at 245).

In dissent, Judge Welliver noted the conflict between this

holding and the governing federal statute, stating:

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

(1.C.C.) regulations relied on this case as imposing no

greater degree of liability ‘‘than the carrier's liability tor

the negligence of its driver when operating its own equip-

ment.’’ Brannaker v. Transamerican Freight Lines, Inc.

428, S.W.2d 524, 529 (Mo. 1968). lt 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.

(662 S.W.2d at 247).

Thus, the Supreme Court of Missouri based its decision not

upon an alternative ground of state law, but expressly upon an

interpretation and construction of the federal statute and

regulation.

This Court has repeatedly held that where a state court of last

resort has based its judgment upon an interpretation of a federal

statute, or a right claimed thereunder by petitioner, jurisdiction

to entertain a Writ of Certiorari exists. /vanhoe Irrigation

District v. McCracken, 357 U.S. 275 (1958); Wilko v. Swan, 346

U.S. 427 (1953); Honeyman v. Hanan, 300 U.S. 14, 18 (1936).

The Court has previously granted certiorari to consider this

same I.C.C. regulation, in Transamerican Freight Lines, Inc. v.

Brada Miller Freight Systems, Inc., 423 U.S. 28 (1975). In

Brada Miller, the Court examined the validity of an idemnifica-

tion agreement entered into between two motor carriers, to

determine if that agreement was an attempt to circumvent the

regulatory requirement that a motor carrier have complete con-

trol and responsibility for leased trucks during the term of the

lease. In Illinois Steel Company v. Baltimore And Ohio

Railroad Company, 327 U.S. 508 (1944), this Court held that

the provisions of a uniform bill of lading governing interstate

shipments of goods which were prescribed by Congress and the

1.C.C. had the force of federal law, and that questions as to the

construction of these provisions determined by state courts were

subject to review by the United States Supreme Court on cer-

tiorari. Under these decisions, it is clear that a federal question

is involved here. Because the Supreme Court of Missouri based

its judgment and opinion solely upon a ground involving federal

law, this Court has jurisdiction of the Writ of Certiorari, even

though the Supreme Court of Missouri might have rested its

— oe

decision upon an independent state law ground. Zacchani v.

Scripps-Howard Broadcasting Company, 433 U.S. 562 (1977);

Henderson Bridge Company v. City of Henderson, 173 U.S.

592 (1899).

CONSTITUTIONAL PROVISIONS, FEDERAL STATUTES

AND FEDERAL REGULATIONS INVOLVED

This case involves the following Constitutional provision:

U.S. CONST. art. I, section 1. All legislative Powers

herein granted shall be vested in a Congress of the United

States, which shall consist of a Senate and House of

Representatives.

In addition, the case involves several federal statutes and

regulations. Citations to these provisions are included herein

with a general description of their content. The full text of the

pertinent provisions are set forth in the appendix as noted.

28 U.S.C. Section 1257(3) (1976). This statute is relied

upon by petitioner as the ground for this Court’s jurisdic-

tion over this Petitioner for Writ of Certiorari. (See Ap-

pendix E).

49 U.S.C. Section 10526(a)(6)(B) (Supp. 1983). This

statute provides that transportation of agricultural com-

modities is exempt from the jurisdiction of the I1.C.C. (See

Appendix F).

49 U.S.C. Section 11107(a) (Supp. 1983). This statute

authorizes the I.C.C. to regulate the leasing of trucks by

authorized motor carriers subject to certain restrictions

upon that regulatory power. (See Appendix G).

49 U.S.C. Section 11101(c)(2) (Supp. 1983). This statute

provides that trucks leased by a motor carrier for a return

trip after a haul of agricultural commodities are exempt

from the provisions of the I.C.C. regulations governing

the duration of leases. (See Appendix H).

dam i

49 C.F.R. Section 1057.4 (1978). This federal regulation

governs the leasing of trucks by authorized motor carriers.

(See Appendix I).

STATEMENT OF THE CASE

Factual Background

This action for damages arises out of the death of Thomas A.

Johnson, who died when a tractor-trailer truck struck his

automobile on November 19, 1978 on U.S. Highway 65 in

Dallas County, Missouri. Respondents recovered a judgment

for $750,000 against petitioner and Marlo Transport Corpora-

tion (hereinafter referred to as ‘‘Marlo’’) in the Circuit Court of

Dallas County, Missouri (see Appendix C). There is no dispute

about the negligence of the truck driver, Lee Brown, Jr.; the

truck was on the wrong side of the road at the time of the acci-

dent. The issue is whether petitioner may be held vicariously

liable for Brown’s negligence solely because a tattered P.1.E.

placard bearing petitioner’s I.C.C. permit number was taped on

the truck.

The truck was owned by Equilease Corporation and leased to

Roland Tabor of St. Louis, Missouri, under a long-term lease.

Tabor employed Lee Brown, Jr. and Bill Singleton of East St.

Louis, Illinois, to drive the truck for him. According to Tabor,

his drivers were paid a percentage of the monies received for

hauling goods. Tabor did not have authority from the I.C.C. to

carry regulated commodities in interstate commerce. He had

leased another truck he owned to various motor carriers having

1.C.C. authority, including Riss International, Kirby Transpor-

tation, and the All States Division of petitioner Pacific Inter-

mountain Express Company (hereinafter referred to as P.I.E.).

The truck involved in this case was never leased to an

authorized motor carrier on a long-term basis. Instead, Brown

and Singleton would obiain loads of agricultural produce in

California and haul them to east coast markets. Under the

1.C.C. regulations, agricultural produce is an ‘‘exempt coii-

~~ Po

modity’’ and no I.C.C. authority was required for these east-

bound loads. Brown and Singleton would then solicit loads of

regulated freight for their return trips to the west coast, and

would generally enter into single ‘‘trip leases’’ with authorized

motor carriers for these return loads, operating under the car-

rier’s I.C.C. authority. Brown and Singleton had made seven or

eight cross-country road trips with this truck before the collision

on November 19, 1978.

Petitioner P.1I.E. is a major motor truck carrier with its prin-

cipal place of business in Walnut Creek, California. Petitioner

has three separate divisions which operate under authority from

the I.C.C. Two of P.I.E.’s divisions own trucks and perform

specialized freight transportation services. The third division,

All States Trucking Division, does not own trucks. It leases

tractor-trailer trucks from independent owner-operators who

haul regulated freight in their trucks pursuant to petitioner’s

1.C.C. authority. These leases are extensively regulated by the

1.C.C., as will be discussed later.

Whenever petitioner leases a truck from an owner-operator, a

written lease is prepared in triplicate. The original of the lease is

filed and retained at petitioner’s central headquarters. The

1.C.C. regulations require that one copy of the lease is to be

kept in the truck at all times during the term of the lease, and

the third copy is retained by the owner of the truck. At the

beginning of the lease, P.I.E. provides the truck driver with

placards to be displayed on the truck bearing petitioner’s I.C.C.

permit number ‘‘MC730”’ to identify P.I.E. as the authorized

carrier. For a ‘‘trip lease,’’ separate placards are provided to

the driver for each trip. After delivering the load to its destina-

tion pursuant to a trip lease agreement, the driver is obligated to

return the placards to P.I.E. The driver may check in with the

P.I.E. agent at his destination point, and after providing

documentation of the delivery and returning the placards, a

draft is forwarded to the truck owner by P.I.E. in payment of

the lease charges, less any amounts which were advanced to the

driver prior to the trip. The P.I.E. agent then forwards a com-

—

plete package of the trip lease documents, including the trip

report and the placards issued to the driver, to P.I.E.’s central

headquarters in Walnut Creek, California. P.I.E. maintains a

file at its central headquarters for the documents associated with

each trip lease, which contains the original copy of the lease

agreement, the cancelled check number, the trip report and the

placards. P.I.E.’s records revealed no evidence that P.I.E. had

entered into a lease for the trip in question with Tabor,

Singleton or Brown.

Petitioner’s placards are marked with a serial number, which

P.I.E. records when placards are issued to a driver. Petitioner’s

field agents are individually responsible for the placards issued

to them and for logging the serial numbers as the placards are

dispensed. The agents are instructed to treat the placards

basically in the same manner as the issuance of a company

check. The drivers of a leased truck are instructed to remove

the placards and return them to P.I.E. with the other documen-

tation for the trip when each trip is completed. P.I.E.’s policy

is to fine its agents $50 if they do not account for placards issued

for a given trip or provide an explanation for the destruction of

the placards. The procedure of recording placard numbers and

fining field agents for the failure to account for them without

explanation was intended by P.1I.E. to ensure that drivers do not

use P.1.E.’s placards without its permission. However, drivers

have on some occasions failed to return those placards, and

have still obtained payment for their trip. The placards are

valuable in that they aid drivers hauling ‘‘hot freight’’ without

I.C.C. authority in crossing state boundaries and avoiding

detection at weight scales. For these reasons, placards are often

stolen and traded among truckers. P.I.E. had no record of ever

having issued placards to Brown or Singleton.

The 1.C.C. has promulgated detailed regulations governing

the leasing of trucks by authorized motor carriers. At the time

of this accident, I.C.C. Regulation 49 C.F.R. Section 1057.4

(1978) governed the terms and conditicas of such leases, and is

at the heart of this matter. This regulation provides, among

—

other requirements, that leases between truck owners and

authorized motor carriers must be in writing and signed by both

parties, must provide for a minimum lease duration of thirty

davs, and must provide for the ‘‘exclusive possession, control,

and use of the equipment, and for the complete assumption of

responsibility in respect thereto. . .”’ by the authorized carrier

for the duration of the lease. In addition, the regulations pro-

vide that the authorized carrier must provide the driver with a

receipt and identifying placards at the time the driver takes

possession of the truck, and that the authorized carrier must ob-

tain a receipt from the driver and remove its identifying placards

from the truck at the time possession is returned to the owner-

operator (see text of the regulation in Appendix 1).

The thirty-day minimum duration requirement of the regula-

tions basically outlaws the ‘‘trip lease’’ for hauling regulated

freight. However, Congress has enacted a specific exemption

from the minimum durational requirement of the regulation

which is applicable in this case. The ‘‘agricultural haulers ex-

emption’’ (49 U.S.C. Section 10526(a)(6)(B)(Supp. 1983)) pro-

hibits the I.C.C. from attempting to regulate the duration of

any lease entered into by an owner-operator immediately

following a haul of exempt agricultural commodities if the

owner-operator is hauling a return load in the direction of his

point of origin. In essence, the exemption allows an agricultural

produce hauler to enter into a single ‘‘trip lease’ for return trips

to his home base. Brown and Singleton, after delivering loads

of agricultural produce on the east coast, were free to enter into

single ‘‘trip leases’ with authorized carriers which were not con-

trolled by the durational requirements of the I.C.C. regulation.

Petitioner was not involved in any long-term lease of this

truck. Respondents’ evidence of P.I.E.’s involvement came

from the testimony of Bill Singleton, the co-driver of the truck

at the time of the accident. Having no record of any leases with

these drivers, P.I.E. was unable to refute his testimony.

Singleton testified he had entered into three or four ‘“‘trip

leases’ with P.1I.E. in the two and one-half months prior to the

on Sin

collision. He had last carried a load for P.I.E. under a trip lease

ten or twelve days prior to the accident. However, all the evidence

was that any trip leases made by P.I.E. terminated according to

their terms upon delivery of the goods on the west coast. Any

trip leases between Singleton and P.I.E. had, therefore, ter-

minated before the accident, unless the continued presence of

the P.I.E. placard operated to extend this single trip lease in-

definitely under the regulation.

Singleton testified that the first time he hauled goods

westward for P.I.E., he was hired by a field agent in New Jersey

whom he recalled as ‘‘Ray Dean.’’ Singleton was given a trip

lease, permits for various states and P.I.E. placards to attach to

the sides of his truck. He also received $600 to $700 in advance

expense money. The placards he was given on his first trip for

P.1.E. were different than the single placard which was on the

truck at the time of the collision. Singleton was instructed to

return these placards and all trip documents to P.I.E., either by

mailing them to P.I.E.’s home office, or by retaining them until

he returned to the cast coast and delivering them to Ray Dean.

Singleton personally returned the trip documents and placards

to Dean at the end of his next produce haul to the east coast.

Singleton testified that he could not remember whether he

removed the P.I.E. placards as soon as he delivered the load on

the west coast, or whether the placards remained on his truck

until he returned to New Jersey. At any rate, he did not need

the placards on his eastbound trip as he was hauling exempt

agricultural commodities.

On the second occasion that Singleton and Brown hauled

goods for P.I.E., Singleton testified they went to the P.I.E. of-

fice in New Jersey and were again given a trip lease, P.I.E.

placards and some advance money. Singleton was again in-

structed to return the trip documents and placards when he

returned to the east coast to receive his final payment. Singleton

stated he did not remove one of the placards from his truck at

the conclusion of this trip for P.I.E. When he returned to the

east coast, he delivered the trip documents to Ray Dean and ob-

tained final payment for the second trip, but testified he did not

return one of the placards. That placard remained on his truck

until the accident.

Singleton knew that he was supposed to return the P.I.E.

placard even though the P.I.E. field agent did not specifically

ask for its return. Singleton and Brown made one or two more

trips for P.I.E. after that second trip lease. They again dealt

with Ray Dean. Singleton testified that they may have been

given new placards for each of these trips, but that he did not

use them because he already had one on his truck. He testified

that the placard which was on the truck at the time of the acci-

dent was one of the P.I.E. placards which was given to him for

his second trip lease for P.I.E. He also testified that he and

Brown were never criticized by P.1.E. for failing to remove that

placard.

Singleton also testified that the presence of the P.I.E. placard

on the truck made him feel more secure in traveling the

highways without being stopped by patrolmen while they were

hauling ‘‘hot freight.’’ In the trucking business, hauling

regulated freight without I.C.C. authority or a lease from an

1.C.C. authorized carrier is known as hauling ‘‘hot freight’’ or

illegal freight. These drivers had no authority. Brown and

Singleton intentionally left the P.I.E. placard on their truck for

that reason. Singleton would have received a ticket if he had

been stopped hauling ‘‘hot freight,’’ since he would have been

unable to show a lease from an authorized carrier despite the

presence of the P.I.E. placard on the truck.

The trip during which the accident occurred had its origins at

a truck stop in New Jersey. Brown and Singleton had just

finished hauling produce from the west coast to the east coast.

They needed no I.C.C. authority for this load, and they had no

trip lease with P.I.E. regarding this load. At the truck stop,

Singleton inquired about loads going west. A man from

**Marlo’’ approaced them, looking for a driver to carry a west-

bound load of freight. After discussing the matter with

Singleton, this individual made a telephone call and then in-

formed Singleton that he had the load.

The Marlo Transport Corporation is a ‘‘freight broker’’

operating in New Jersey. Marlo does not own or lease trucks. It

acts as a middleman between shippers who need freight hauled

and owner-operators who are seeking loads to haul. The trips

arranged by Marlo are generally made under the I.C.C. authori-

ty of the owner-operator if he has such authority, or under the

authority of the authorized carrier to whom the truck is leased.

One of Marlo’s methods of locating drivers is to hire

*‘lumpers,’’ who contact drivers at truck stops who are seeking

a load going to a certain location.

When Marlo obtains a driver for its shipping customer, the

shipper pays the freight charge to Marlo and Marlo then strikes

a deal with the driver. Marlo pays drivers by check or in cash,

and the driver usually earns approximately 75 percent of the

freight charge paid to Marlo.

Brown and Singleton had never hauled for Marlo prior to the

trip in question. After striking a deal with Marlo’s lumper,

Brown and Singleton were escorted to the Franklin Stainless

Corporation in New York. There they picked up a load of steel

coil to be delivered to Broken Arrow, Oklahoma. The truck

was loaded at the Franklin Stainless Corporation and the drivers

were given a shipping order which identified ‘‘Marlo’’ as the

carrier. Brown and Singleton had no discussions with anyone

from Franklin Stainless Corporation, but received their orders

from the Marlo lumper. After loading, Brown and Singleton

returned to the Marlo Transport Corporation office in New

Jersey. An individual at that office accepted the shipping order

from Singleton and gave Brown and Singleton a $600 expense

advance. This individual instructed Brown and Singleton to

return the signed bill of lading evidencing delivery of the load to

his office, and they would then be paid the balance due them.

Brown and Singleton then returned to the truck stop and

cashed their advance check. They arrived in St. Louis,

— 1]3—

Missouri, on November 17, 1978, where they stayed overnight.

On the evening of November 18, they left St. Louis following a

route which would avoid the weight station on Interstate

Highway 44 near Strafford, Missouri. After stopping for the

night, Brown was driving the truck South on U.S. Highway 65

early on the morning of November 19, 1978 when the collision

occurred.

Witnesses at the scene of the collision identified the worn

P.I.E. placard on the truck. The highway patrol officer who in-

vestigated the accident testified that Lee Brown, Jr. stated after

the collision that he did not have an I.C.C. carrier’s bill of

lading for the trip.

Brown and Singleton did not have any lease with P.I.E. or

any other authorized carrier for this trip. There was no one at

the Marlo office in New Jersey who had any relationship to

P.1.E. The advance money paid by Marlo was not paid with a

P.1I.E. check. Brown and Singleton did not stop at any P.1.E.

office anywhere during the course of the trip and had no contact

with anyone representing P.I.E. in connection with the trip.

P.I.E. had no knowledge of the drivers’ whereabouts on the

trip, and P.I.E. had no right to any of the proceeds from the

trip. Singleton testified that he did not believe he was hauling

the load from Franklin Stainless Corporation under any P.I.E.

lease or permit. He knew that he was hauling ‘‘hot freight.’’ He

also knew that the load weighed approximately 78,000 pounds

and was overweight in some states on their route, including

Missouri. He intended to avoid weight stations where their

documentation might be checked, and testified that he thought

the presence of the P.I.E. placard on the truck would allow

them to travel without incident.

No written lease between these drivers and P.I.E. covering

this trip, or any other ‘‘trip lease’’ was produced by respondents

at trial. A search of P.1.E.'s central records did not locate any

“trip leases’’ or long-term leases between P.1.E. and Brown,

Singleton or Tabor.

Presentation of the Federal Question

The federal question was actually raised in these proceedings

by respondents, in that their theory of liability against petitioner

from the outset at trial and on appeal was based upon the Motor

Carrier Act and the I.C.C. regulation adopted thereunder. In

their Amended Petition, respondents alleged that Lee Brown,

Jr. and Bill Singleton were engaged in a joint venture of

transporting goods to obtain a profit and that they were acting

within the scope and course of an agency for P.I.E., Equilease

Corporation, Marlo Transport Corporation and Roland Tabor.

They also alleged that:

The negligence of defendant Brown is imputed to defen-

dant P.I.E. by reason of the fact that the motor vehicle

which Brown was driving at the time of the incident

described in the petition and the trip of the truck were con-

ducted pursuant to authority given defendant P.I.E. to

operate such vehicle on the designated route and carry

goods for hire by the Public Service Commission of the

State of Missouri and/or the Interstate Commerce Com-

mission in the United States of America.

(First Amended Petition, paragraph 15).

Respondents dismissed their cause of action against the drivers

Brown and Singleton and the long-term lessee Tabor two days

prior to trial. Equilease Corporation had previously prevailed

on a Motion for Summary Judgment, and the case thus went to

trial against P.I.E., Marlo Transport Company, and the driver

of a third automobile, Ralph N. Jenkins.

From the opening moment of this trial, respondents have rais-

ed and presented their interpretaion of the I.C.C. regulation as

the law of this case. On voir dire examination of the jury,

respondents’ attorney made at least eighteen separate references

to the 1.C.C. regulation and specific reference to the placard re-

quirements contained therein (see Appendix J). During trial,

respondents’ attorney referred to the regulation in opening

—_

statement and respondents offered into evidence and read to the

jury the relevant portions of the Motor Carrier Act and the

1.C.C. regulation (see Appendix K). Respondents’ verdict

directing instruction to the jury, Instruction Number 7, was bas-

ed upon respondents’ theory that by virtue of the I.C.C. regula-

tion, respondents were not required to prove or submit to the

jury that Lee Brown, Jr. was acting with the scope and course of

any employment for petitioner at the time of the accident.

Under that instruction, a mere finding that the placard was pro-

vided to Brown pursuant to a lease and that it remained on the

truck at the time of the accident was sufficient to impose liabili-

ty (see Appendix L).

A verdict was returned for respondents against petitioner and

Marlo, and judgment was entered on February 4, 1982, in the

amount of $750,000 (see Appendix C).

Petitioner filed Motions for Judgment Notwithstanding the

Verdict and for a new trial, which raised the issue of

respondents’ failure to submit the scope and course of employ-

ment issue to the jury (see Appendix M). Those motions were

overruled on May 13, 1982. Petitioner filed its Notice of Appeal

to the Missouri Court of Appeals, Southern District on May 20,

1982.

The Briefs in the Missouri Court of Appeals, Southern

District, clearly present and preserve the federal question.

Respondents’ Brief set forth the provisions of the Motor Carrier

Act and the I.C.C. regulation at issue. In their Brief,

respondents contended that the issue of scope and course of

employment was not required to be submitted to the jury even

though petitioner did not participate in the trip in question

because the I.C.C. regulation imposes vicarious tort liability for

a driver’s negligence when a carrier fails to remove its identify-

ing placard from a truck (see Appendix N). In petitioner’s Rep-

ly Brief in the Missouri Court of Appeals, Southern District,

Petitioner cited and relied upon Section 304(e)(2) of the Motor

a yo

Carrier Act' for its contention that petitioner as a lessee of the

truck must be treated as if it were an owner of the truck, and

that scope and course of employment therefore remains an in-

dispensable element of respondents’ case (see Appendix O). The

Missouri Court of Appeals, Southern District rendered its 3 to 1

opinion affirming the judgment of the trial court on April 18,

1983 (Appendix B).

Petitioner presented and preserved the federal question regar-

ding construction and interpretation of the Motor Carrier Act

in its Application for Transfer to the Supreme Court of

Missouri, which was granted on June 30, 1983 (see Appendix

P). The federal question of construction and interpretation of

the interplay between the Motor Carrier Act and the I.C.C.

regulations promulgated thereunder was again presented in peti-

tioner’s Supplemental Brief (see Appendix Q) and respondents’

Brief (see Appendix R).

On December 20, 1983, the Supreme Court of Missouri

rendered its 4 to 3 judgment and opinion, again affirming the

judgment of the trial court. As noted in the Jurisdictional

Statement of this Petition for Writ of Certiorari, the majority

opinion cited and relied upon the I.C.C. regulation in issue, rul-

ing that petitioner could be held liable for the driver’s negligence

without regard to scope and course of employment upon a fin-

ding that a placard was furnished by petitioner in connection

with a lease and that the placard remained on the truck at the

time of the accident. At page 19 of majority Opinion, the

Supreme Court of Missouri stated that:

The conclusion we reach is based upon statutory policy

rather than a conventional respondeat superior theory. It

is based on the failure to comply with an explicit of the

governing regulations .. .

(See Appendix A).

io Petitioner mistakenly referred in its Reply Brief to 49 U.S.C. Sec-

tion 304(e)(2), the earlier but nearly identical codification of the

statute relied upon. 49 U.S.C. Section 11107(aSupp. 1983).

Petitioner filed its Motion for Rehearing in the Supreme

Court of Missouri on December 7, 1983. In that motion, peti-

tioner again raised the federal question of the construction and

interpretation of the Motor Carrier Act and its interplay with

the I.C.C. regulation. In addition, petitioner raised a federal

Constitutional claim that if the majority opinion of the Supreme

Court of Missouri had correctly interpreted the intent of the

1.C.C. regulation, then that regulation exceeded the delegated

authority of the I.C.C. under the Motor Carrier Act and was in

violation of Article I, Section 1 of the United States Constitu-

tion, providing that:

All legislative powers herein granted shall be vested in a

Congress of the United States, which shall consist of a

Senate and House of Representatives.

(See Appendix S).

Petitioner therefore submits that the federal question was

raised, presented and preserved at trial and throughout the

course of the appellate proceedings in this matter. Indeed, the

federal question is the very foundation of respondents’ case

against petitioner. The judgment and majority Opinion of the

Missouri Supreme Court is expressly based upon the federal

question and this court, therefore, has jurisdiction to entertain

this Petition for Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

The Missouri Supreme Court’s Interpretation Of The I.C.C.

Truck Leasing Regulation Denies To Petitioner Its Rights

Under The Motor Carrier Act To Be Treated Like An Owner Of

The Leased Truck, And Its Immunity From Tort Liability

Under The Motor Carrier Act For The Unauthorized Acts Of A

Driver After Expiration Of A Lease.

The evidence produced by respondents at trial was insuffi-

cient to establish vicarious liability of petition:r under tradi-

tional common law doctrines. There was no evidence that Lee

Brown, Jr. was acting within the scope and course of any

employment for P.I.E. on the trip, and P.I.E. received no

monetary benefit from his activities. Any l’ uses between P.I.E.

and Brown had expired by their terms. All of the evidence

showed that P.I.E. had absolutely no connection with the trip.’

Respondent’s theory of liability instead rested entirely upon

an interpretation of tle regulatory scheme of the I.C.C. regula-

tion governing truck leasing, 49 C.F.R. 1057.4(a)(4)(1978). The

regulation provides for the exclusive possession, control and use

of the truck, and the complete assumption of responsibility

therefor by the motor carrier during the term of any lease.

Subsection (d) of the regulation requires the carrier to display

identifying placards on the leased truck during the lease and to

remove them at the end of the lease. Respondents contend that

because petitioner failed to get a placard back from Brown, its

? Petitioner does not contend, and has never argued, that it is not

fully responsible for the negligence of a driver of leased equipment

while the truck is carrying P.I.E.’s goods or serving P.1.E.’s business

interests. It is the imposition of vicarious liability for the unauthoriz-

ed acts of a driver not under lease to P.I.E., and which P.I.E. in-

disputably had no knowledge or control over, of which petitioner

complains.

= Pe

single trip lease with Brown and Singleton continued in effect

indefinitely, and petitioner is therefore liable for the negligent

acts of Brown without regard to whether he was serving peti-

tioner’s business interests when the accident occurred.

The Supreme Court of Missouri broadened respondents’

analysis of the vicarious liability imposed by the regulatory

scheme. The court below held that the mere continued presence

of an identifying placard on the truck was sufficient to impose

vicarious liability upon petitioner, without holding that any trip

lease with the drivers had continued in effect. Johnson v.

Pacific Intermountain Express Company, 662 S.W.2d 237,

245-246 (Mo. banc 1983) (4-3 decision) (see appendix A). Focus-

ing on the placard, the court below stated that its holding

centered:

[O}n the appearance of authority created and maintained

when a sign is issued and not retrieved. It was not

necessary, then, for the plaintiff to show that the truck was

on an actual mission for P.1.E. at the time of the accident.

... P.LE.’s liability is based on appearances, not on ac-

tualities.

Id. at 246. (emphasis added).

This interpretation of the regulation conflicts with the explicit

language of Section 11107(a)(4) of the Motor Carrier Act, which

provides that a carrier using leased equipment is to be treated as

if it were the owner of that equipment. 49 U.S.C. Section

11107(a)(4)(Supp. 1983). If P.I.E. had owned this truck, it

would not have been vicariously liable for respondents’

damages. No federal statute or I.C.C. regulation imposes ab-

solute civil tort liability upon a truck owner for an unauthorized

use of its truck.’ See Johnson v. Pacific Intermountain Express

* Petitioner has scoured the legislative history of the Motor Carrier

Act and the administrative proceedings leading to the promulgation of

the I.C.C. leasing regulations. Petitioner has found nothing in those

sources indicating that Congress or the I.C.C. intended the regulatory

scheme to impose absolute vicarious liability upon a carrier whose

Company, 622 S.W.2d 237, 247 (Mo. banc 1983) (Welliver, J.,

dissenting). Rather, the tort liability of a truck owner is deter-

mined by reference to common law principles of vicarious

liability, which require a claimant to prove that the driver was

acting within the scope and course of his employment and serv-

ing the business interests of the truck owner at the time of the

accident.‘ The Missouri Supreme Court’s Opinion denies to

placard was retained by an owner-operator at the end of a lease and

remained on the truck at the time of an accident. Rather, the entire

history of the regulatory scheme indicates that it was intended to

remedy a very specific evil—the widespread practice by motor carriers

in the 1940s and 1950s of leasing trucks under contracts denominating

the owner-operator as an independent contractor. Under such leases,

financially irresponsible owner-operators, so called ‘‘gypsy truckers,”’

were loosed upon the highways without any control or supervision by

the authorized carriers. Under prevailing common law rules, the car-

riers were insulated from liability for the gypsy trucker’s negligence

even while its own goods were on the truck. The regulatory scheme

sought to correct this abuse by constituting the owner-operator a

statutory employee of the carrier during the term of the lease. Thus,

the carrier would always be financially responsible for any trip, in-

cluding a return trip, where that carrier’s cargo was involved or its

business interests were being served. See American Trucking Associa-

tions v. United States, 344 U.S. 298, 309-310 (1952); Sen. Rep. No.

1271, 84th Cong. Ist Sess. at 1-3 (1955); H.R. Rep. No. 2425, 84th

Cong., 2d Sess. at 2-4 (1956); Ex Parte MC-43, Lease and Interchange

of Vehicles by Motor Carriers, §51 M.C.C. 461, 52 M.C.C. 674, 64

M.C.C. 361, 68 M.C.C. 553, 79 M.C.C. 65, 79 M.C.C. 251, 84

M.C.C. 297, 86 M.C.C. 525; Ex Parte Mc-41 Identification of Motor-

Carrier Vehicles, 12 C.F.R. 2203. I.C.C. reports under Ex Parte

Mc-43 indicate that a primary reason for issuance of the leasing

regulations was to ensure that carriers would inspect leased vehicles

for violations of I.C.C. safety regulations. The I.C.C. reports do not

intimate that the Commission ever contemplated imposing strict

liability upon motor carriers simply because their placard was attach-

ed to a vehicle. There is no indication in the legislative or ad-

ministrative history that the motor carrier was intended to be made an

insurer of the travelling public for accidents occurring after termina-

tion of a lease.

* This Court has held that common law remedies are preserved

under the Motor Carrier Act to the extent that they are in harmony

with its regulatory scheme and purpose. Pennsylvania R. Co. v. Son-

petitioner its claimed right, under the Motor Carrier Act, to be

treated like an owner of the truck and to be immune from civil

tort liability for the unauthorized negligent acts of the driver

after the lease ended.

The Petition For Writ Of Certiorari Should Be Granted To

Resolve The Widespread Conflict In The Interpretation Of The

Motor Carrier Act And The I.C.C. Truck Leasing Regulation

Existing Under The Decisions Of The Missouri Supreme Court

In This Case, Other State Courts Of Last Resort And Several

Federal Circuit Courts Of Appeal.

The need for Supreme Court review of the interplay between

the Motor Carrier Act and the I.C.C. regulation has been allud-

ed to in several reported decisions, including the majority Opi-

nion of the Missouri Supreme Court here. Johnson v. Pacific

Intermountain Express Company, 662 S.W.2d 237, 243 (Mo.

banc 1983) (4-3 decision); Schedler v. Rowley Interstate

Transportation Company, Inc., *68 N.E.2d 1287, 1289 (Ill.

1977). At present, there is a deci :d conflict in the interpreta-

tion of the statutory and regulatory scheme among state ap-

pellate courts and federal circuit courts of appeal. See Supreme

Court Rule 17.1(b).

One distinct line of cases adopts the interpretation of the

statute and regulations urged by petitioner. In Wilcox v. Tran-

samerican Freight Lines, Inc. 371 F.2d 403 (6th Cir. 1967), the

driver of a leased truck had completed a trip for the carrier and

was on his way home in the tractor at the time of the accident.

In light of evidence that the driver was not engaged in the car-

rier’s business nor doing anything for the carrier’s benefit at the

man Shaft Coal Co., 242 U.S. 120, 123-124 (1916). See also Hewitt-

Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84 (1962). Com-

mon law principles of vicarious liability are fully consistent with the

express language of the Act (lessee-carrier is to be treated like an

owner of the truck) and the original purpose of the leasing regulation

(to prevent truck leasing by independent contractors).

time of the collision, the Court of Appeals affirmed a summary

judgment in favor of the carrier, stating:

In our opinion, the I.C.C. regulations do not impose a

liability on a carrier using leased equipment greater than

that when operating its own equipment. Under Ohio law,

liability of an owner of a motor vehicle for the acts of his

employee, is governed by the principle of respondeat

superior . . . If one of the owner’s vehicles was being

operated by an employee with permission but on a mission

of the employee’s own, the owner cannot be held liable.

The same rule applies to leased equipment.

Id. at 404.

In Cox v. Bond Transportation, Inc., 53 N.J. 186, 249 A.2d

579 (1969), an owner-operator driving a truck bearing the car-

rier’s I.C.C. permit had an accident after completing a delivery

for the carrier, while driving the tractor to his home without a

trailer. Even though the carrier was ultimately found liable for

the driver’s negligence, the Court of Appeals determined that

issue based upon whether the driver was ‘‘engaged in the ac-

tivities of the carrier’’ at the time of the collision. Jd. at 589.

This ‘‘agency”’ analysis would have been totally unnecessary if

the I1.C.C. regulation imposed absolute liability for the presence

of the carrier’s placards.

In Gackstetter v. Dart Transit Company, 130 N.W.2d 326

(Minn. 1964), a truck leased to an I.C.C. carrier was involved in

an accident. The Minnesota Supreme Court found that the

driver had been on a purely personal mission and held that the

1.C.C. carrier could not be subjected to vicarious liability even

though the truck was being used with the carrier’s permission. *

* See also Kaplan Trucking Co. v. Lavine, 253 F.2d 254 (6th Cir.

1958); Schmidbauer v. Baltimore & P. Motor Exp. Co., 228 Md. 637,

181 A.2d 325 (1962).

The other line of cases follows the reasoning of the Supreme

Court of Missouri in this case, at least in part. Those cases im-

pose vicarious liability upon the I.C.C. carrier for the

negligence of a driver, if the carrier failed to obtain a return of

its placards and they remained on the leased truck. The leading

case is Mellon National Bank and Trust Company v. Sophie

Lines, 289 F.2d 473 (3d Cir. 1961). There a 30 day lease of the

truck was in effect and the carrier’s signs were displayed on it.

The driver used the truck for an unauthorized haul of lumber

and had an accident en route. The carrier had no monetary in-

terest in nor knowledge of that trip. The Court of Appeals, in-

terpreting the I.C.C. regulation, found the carrier liable due to

the presence of its signs and the appearance of authority they

created, even though common law liability would not have at-

tached.

A similar result was reached in Rodriguez v. Ager, 705 F.2d

1229 (10th Cir. 1983). There, despite the carrier’s lack of

knowledge of the trip, it was held that the presence of the car-

rier’s placards, furnished under a continuing lease, subjected it

to responsibility for the driver’s negligence under the I.C.C.

regulation.°®

However, the majority of these cases involve accidents which

occurred during the term of the lease, presumably at a time

when the carrier had a right of control over the driver and a

right to receive monetary benefit from his operations.’ In addi-

* See also Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131 (8th Cir.

1974); Simmons v. King, 478 F.2d 857 (Sth Cir. 1973); Cosmopolitan

Mut. Ins. Co. v. White, 336 F.Supp. 92 (D. Del. 1972); Hodges v.

Johnson, 52 F.Supp 488 (W.D. Va. 1943); Kreider Truck Service, Inc.

v. Augustine, 76 Ill. 2d 535, 394 N.E.2d 1179 (1979); Leotta v. Pless-

inger, 8 N.Y.2d 449, 171 N.E.2d 454 (1960); Felbrant v. Able, 194

A.2d 491 (N.J. 1963).

’ Wellman v. Liberty Mut. Ins. Co., supra; Simmons v. King,

supra; Rodriguez v. Ager, supra; Mellon Nat’l. Bank & Trust Co. v.

Sophie Lines, Inc, supra; Cosmopolitan Mut. Ins. Co. v. White;

supra; Hodges v. Johnson, supra; Kreider Truck Service, Inc. v.

Augustine, supra; Cox v. Bond Transportation, Inc., supra; Felbrant

v. Able, supra.

ee ee

tion, the I.C.C. carrier in most of these cases was at least initial-

ly responsible for sending the truck on the trip, and the accident

happened either after delivery of the goods while the driver was

using the truck on a personal mission or during a return trip

with an empty truck immediately after the conclusion of the trip

for the carrier. In the present case no lease remained in effect at

the time of the accident, and P.I.E. was not involved in sending

the truck on the trip. Thus, the Supreme Court of Missouri has

stretched the interpretation of the I.C.C. regulation further

than any other court which has construed it.

Two prior Missouri cases have addressed the issue of scope

and course of employment and the I.C.C. regulation. In Bran-

naker v. Transamerican Freight Lines, Inc. 428 S.W.2d 524

(Mo. 1968) and Duke v. Thomas, 343 S.W.2d 656 (Mo. App.

1961), the courts’ decisions indicate that the issue of scope and

course of employment remains present in any 1.C.C. carrier

case. The Brannaker court explicitly relied on the provision of

the Motor Carrier Act requiring that the carrier be treated as if

he owned the truck, and stated that scope and course of employ-

ment was in issue despite the presence of the carrier’s placards

since there was evidence in the case that the driver was on a

purely personal mission at the time of the accident. /d. at 529,

534. In Duke v. Thomas, supra, the court found the carrier

liable based upon sufficient evidence that ‘‘at the time of the ac-

cident he was acting within the scope of his employment.’’ /d. at

660. The Opinion of the the Missouri Supreme Court in this

case does not expressly overrule either of these prior decisions in

Missouri. Instead, it distinguishes them on the ground that the

prior cases involved ‘‘purely personal missions’’ by the drivers

while the leased trucks were empty, whereas the truck in the pre-

sent case was loaded with regulated freight (662 S.W.2d at

244-246). Thus, there is confusion even within the State of

Missouri as to the exact interpretation of the I.C.C. regulation

and its effect on the carrier’s tort liability.

The Missouri Supreme Court’s majority Opinion departs

from all other cases interpreting the federal regulation in impos-

ing the requirement that the claimant prove the truck was haul-

ing ‘‘dry regulated freight’’ at the time of the accident. There is

no hint in the regulatory scheme that the carrier’s liability is

dependent upon whether the truck is loaded or unloaded at the

time of the accident. This new requirement ‘.nposed by the

court below is in direct contradiction to decisions in numerous

other jurisdictions, which have imposed vicarious liability on an

I.C.C. carrier for an accident occurring while the truck is empty,

prior to picking up a load or a return trip after carrying a load

for that carrier.*

As this Court has often noted, review by certiorari is ad-

visable where serious conflicts in the interpretation of federal

statutes and regulations have arisen in the decision of state

courts of last resort and federal circuit courts. Missouri Pacific

Railroad Company v. Elmore & Stahl, 377 U.S. 134 (1964);

United States v. Oregon, 366 U.S. 643 (1961). Just such a con-

flict is apparent here, and petitioner submits that the writ should

be granted. Supreme Court Rule 17.1(b).

The Petition For Writ Of Certiorari Should Be Granted To

Resolve The Issue Of The Validity, Under Article I, Section 1

Of The United States Constitution, Of The I.C.C. Truck Leas-

ing Regulation Created By The Decision Of The Missouri

Supreme Court Below.

The Opinion below also creates an issue of Constitutional

magnitude as to the validity of the 1.C.C. regulation. A literal

reading of the Motor Carrier Act requires that a carrier using

leased trucks be treated as if he owned the truck. Even under

* Rodriguez v. Ager, supra,; Cosmopolitan Mut. Ins. Co. v. White,

supra; Schedler v. Rowley Interstate Transp. Co., supra; Duke v.

Thomas, supra; Felbrant v. Able, supra; Cox v. Bond Transp., Inc.,

supra. See also American Transit Lines v. Smith, 246 F.2d 86 (6th

Cir. 1957).

the I.C.C. regulation, an owner’s liability is dependent upon

whether the driver is acting in the scope and course of his

employment. If the 1.C.C. regulation is interpreted to impose

liability upon the carrier without regard to scope and course of

employment of the driver, then the regulation contradicts the

express language of the Motor Carrier Act and exceeds the

scope of the 1.C.C.’s delegated authority. Thus, the interpreta-

tion of the I1.C.C. regulation adopted by the Supreme Court of

Missouri raises Constitutional issues under Article I, Section |

of the United States Constitution. Review by this Court, con-

struing the Motor Carrier Act and the I.C.C. regulation

together, could dispel this Constitutional cloud.

IV.

The Petition For Writ Of Certiorari Should Be Granted To

Resolve The Conflicting Interpretations Of The Motor Carrier

Act And The I.C.C. Truck Leasing Regulation, To Provide

Guidance For The Motor Carrier Industry And Protection To

The Travelling Public.

In addition to the conflict among decisions in various

jurisdictions on this issue, important policy reasons favor the

granting of this Writ. The use of leased trucks in interstate com-

merce is extremely widespread.’ A _ shifting demand for

transport equipment in different regions during different

agricultural and business seasons makes the use of independent

owner-operators’ equipment more efficient than the

* For example, in 1980, of the 354,211 total Class | and Class 2

motor carrier trucks hauling general freight, 73,268 units were rented

with a driver and 37,863 were rented without drivers. More

significantly, trucks operated by Class 1 and Class 2 motor carriers

drove approximately 17.5 billion highway miles hauling general

freight in 1980. Trucks owned by the motor carriers accounted for ap-

proximately 9.4 billion of those miles; but approximately 5.5 billion

miles were driven by trucks rented with drivers and approximately 2.5

billion miles involved trucks rented without drivers. See Trinc’s Blue

Book of the Trucking Industry (1981 ed.), published by Trinc’s

Transportation Consultants, McLean, Va.

=. ee

maintenance of large fleets of centrally based trucks.'’ Of

necessity, leases of this independently owned equipment are fre-

quently for single trips or short terms, creating an avalance of

documentation and identifying placards which the motor carrier

industry simply cannot police to perfection. The uncertainty

created by the conflict in the numerous decisions interpreting

the regulatory scheme shoulders the motor carrier industry with

tremendous potential liability for unauthorized acts of owner-

operators, and makes proper business and insurance planning

impossible. At present, the law governing motor carriers and

their corresponding tort liability changes as leased trucks cross

state and federal circuit lines. The rights of injured claimants to

obtain compensation may depend solely upon the fortuitous cir-

cumstance of where an accident occurs or which ‘‘version’’ of

the federal law is to be applied.

The majority below justifies its decision, in part, on the

ground that:

[O]ne important purpose of the regulatory scheme is to

protect persons who are injured in highway accidents, by

increasing the likelihood that a substantial entity will be

available to respond to any judgment rendered.

662 S.W.2d at 243.

While this purpose is laudable, there simply is no support in

the language or history of the Motor Carrier Act for imposing

strict liability on an entity not factually responsible for an in-

jured claimant’s damages without proof of an existing lease.

Furthermore, imposing strict liability upon carriers under a

‘*placard law’’ will not stop the carnage caused by irresponsible

truckers hauling ‘‘hot freight.’’ That purpose will be ac-

'° This economic fact was recognized by the Congress and the

1.C.C. in the proceedings leading to the adoption of the agricultural

commodities exemption from I.C.C. regulations. See 49 U.S.C. Sec-

tion 10526(a)(6)(b)(Supp. 1983) and authorities cited note 2 supra. See

also Transamerican Freight Lines, Inc. v. Brada Miller Freight

Systems, Inc., 423 U.S. 28, 35 (1975).

complished only if the freight broker and shipper are made

responsible for assuring that a driver shows a lease with an

authorized 1.C.C. carrier before giving him a load of freight.

Petitioner submits that it is time for this Court to address the

conflicting interpretations of the Motor Carrier Act and the

1.C.C. regulation governing leased trucks. The I.C.C. carrier's

continuing responsibility under the federal ‘‘placard law’’ must

be resolved. This case clearly falls within the Court's jurisdic-

tion, and petitioner respectfully requests the Court to exercise

its reasoned discretion and grant this Petition for Writ of Cer-

tiorari.

Respectfully submitted,

HAROLD J. FISHER

Missouri Bar Number 13441

JOHN E. PRICE

Missouri Bar Number 28150

WOOLSEY, FISHER,

WHITEAKER, McDONALD

& ANSLEY

P.O. Box 1245, S.S.S.

Springfield, Missouri 65805

Counsel for Petitioner

APPENDIX

APPENDIX A

Cathy Jean Johnson, and Thomas Ray

Boatz Johnson and Rebecca Joyce Johnson

by their next friend Cathy Jean

Johnson,

Plaintiffs-Respondents,

Pacific Intermountain Express

Co., and Marlo Transport Corporation,

Defendants-Appellants.

No. 65102.

Supreme Court of Missouri,

En Banc.

Nov. 22, 1983

As Modified on Denial of Rehearing

Dec. 20, 1983.

BLACKMAR, Judge.

Thomas Johnson was killed November 19, 1978 in a collision

in Dallas County between a car in which he was a passenger and

a 1978 Kenworth tractor trailer unit, leased by Tabor and driven

by Brown. His widow, Cathy, and minor children obtained

judgment against Pacific Intermountain Express Co. (P.I.E.)

and Marlo Transport Corporation, for $750,000. No issue was

preserved as to the negligence of Brown or as to the amount of

the verdict. The defendants appealed to the Missouri Court of

Appeals, Southern District, which affirmed with one dissent as

to P.I.E. We transferred the case and now decide it as on

Original appeal. We likewise affirm.

The only assertion of trial error is easily disposed of. Cathy,

prior to the trial, had married Samuel Lower. She continued to

use the name ‘‘Cathy Jean Johnson,’’ and on May 1, 1981 the

Circuit Court of Webster County entered an order ‘‘reaffirm-

ing’’ that name for her. Before trial of the case the plaintiffs

sought and obtained an order in limine, suppressing reference to

Cathy’s marriage to Lower, to her surname as Lower, and to

Lower as her husband. The jurors were questioned on voir dire

as to acquintanceship with Lower, but without identifying him

as Cathy’s husband, and none responded. There was evidence

of ‘thousehold services’’ performed by Thomas Johnson, and

the defendants sought to introduce evidence of the remarriage

to show that Lower was available in Johnson’s stead. They also

complain of Cathy’s use of the name Johnson, citing cases

holding that a witness in her situation must answer with her

‘*true’’ name. |

[1,2] The point is not well taken. A married woman may take

a name which is not that of her current husband. Matter of

Natale, 527 S.W.2d 402 (Mo.App.1975). Cases holding that a

witness must give her true name, relying on a cautionary instruc-

tion to dispel possible prejudice, are not in point because Cathy

answered with her true legal name. The reference to Lower’s

potential household services in mitigation of damages is no

more appropriate than is mention of his potential earnings.’ The

defendants understandably wanted the jury to know about

Cathy’s remarriage in the hope that they would take this into ac-

count in determining damages in spite of any cautionary instruc-

' Defendants cite Duebelbeis v. Dohack, 615 S.W.2d 488

(Mo.App.1981) and Glick vy. Allstate Insurance Co., 435 S.W.2d 17

(Mo.App. 1968).

* Missouri courts have consistently held that a cause of action for

wrongful death is not abated by remarriage nor may the remarriage be

considered in mitigation of damages. See, e.g., Glick v. Allstate In-

surance Co., 435 S.W.2d 17, 23 (Mo.App.1968); Katz v. North Kan-

sas City Development Co., 223 Mo.App. 606, 14 S.W.2d 701, 709

(1929); Platt v. Cape Girardeau Bell Telephone Co., 12 S.W.2d 933,

936 (Mo.App. 1929); Davis v. Springfield Hospital, 204 Mo. App.

626, 218 S.W. 696, 700 (1920).

Pe i

tions that might be declaimed. Here no untrue statements were

made and the jury was not deprived of any information it had a

right to have. No purpose would be served by telling the jurors

about the remarriage and then instructing them to disregard the

information.

The remaining questions have to do with the vicarious liabili-

ty of P.I.E. and of Marlo. Each argues vigorously that it is not

liable. This requires detailed consideration of the evidence as to

the ownership, leasing and operation of the 1978 Kenworth,

taken most strongly from plaintiffs’ standpoint.

Tabor, a resident of St. Louis, owned or leased two tractors,

each of which operated with a trailer in an 18-wheel unit. He

secured the services of Brown and of Singleton as drivers, and

would sometimes operate with them so as to provide three

drivers for the two vehicles. There was a conflict in the

testimony as to whether the drivers received fixed compensation

or a share of the earnings. Brown, who was apparently the prin-

cipal operator of the 1978 Kenworth, died of natural causes

after the accident in issue, and evidence about the operation of

that vehicle came primarily from Singleton.

None of the three had any kind of Interstate Commerce Com-

mission or state authority for the transportation of freight.

After the 1978 Kenworth was acquired a pattern of operation

was developed in which a load of produce would be picked up

on the West Coast and hauled to the East Coast. Agricultural

products are exempt commodities which require no operating

authority for shipment in interstate commerce.’ After the pro-

duce was unloaded the drivers would look for a westbound

load, which would usually involve the leasing of the equipment

to a common carrier possessing ICC authority. Leases of this

kind are permitted by ICC regulations, under conditions which

* 49 U.S.C. § 303(b)(6) (1976) (now 49 U.S.C. § 10526(aX6)(B)

Supp. V 1981) provided the exemption from operating authority for

the shipment of agricultural commodities in interstate commerce.

— ~

are very important to this case and will be discussed in detail at a

later point. The regular drivers would then drive the loaded

vehicle to the destination specified by the carrier, after which

another exempt eastbound load of produce would be sought.

P.I.E. is a major interstate carrier of freight. Although it

disclaimed any knowledge at all of any lease or other dealing

with Brown, Tabor, or Singleton, the latter two testfied to the

several trips by the 1978 Kenworth under lease to P.I.E.

Singleton told of a visit to a P.I.E. terminal in New Jersey,

which had a sign identifying it as such, in which he dealt with a

man named Ray Dean, who directed the loading of the trailer

and provided advance money for expenses. Dean delivered ship-

ping documents, including a trip lease, which were carried with

the vehicle, and signs or placards evidencing operation under

P.I.E. authority, which were affixed to the tractor. On the first

trip Dean told Singleton that he could either mail the signs in at

the end of the trip or bring them back with his next eastbound

load. Singleton elected the latter option. There were more west-

bound trips under P.I.E.’s authority, arranged with Dean. The

precise number of these is not clear, but the jury could have

found at least three. At the beginning of the second trip another

set of signs was furnished. Dean did not ask that these be

returned, and at least one of them remained on the truck until

the accident. The truckers’ copies of the trip leases were ap-

parently discarded at the end of each run. Tabor testified about

receiving payments from P.I.E. and dealing with a P.I.E.

representative in East St. Louis.

Although the evidence is sketchy, the jury could have found

that the 1978 Kenworth made its last westbound trip under

P.I.E.’s operating authority 10 or 12 days before the accident,

that it carried signs previously furnished by P.I.E., that P.I.E.

made no effort to collect the signs at the end of the run, and that

at least one sign was on the tractor at the time of the accident.

There is no evidence, however, that the fatal trip was carried on

under P.I.E.’s authority or with its knowledge, or that P.I.E.

had any interest in the revenues. Any claim the plaintiffs have

ae a ei

against P.1.E., then, must depend on a constructive agency

derived from the federal statutes and regulations adopted by the

Interstate Commerce Commission pursuant to those statutes.

The load for the fatal trip was arranged by defendant Mario

Transportation Company, which is a ‘‘freight broker.’’ A

freight broker exists to put shippers in touch with truck

operators. Marlo does not operate trucks and has no ICC or

other operating authority. Marlo learned that the 1978 Ken-

worth was available for a westbound trip, and arranged for a

load of steel to be hauled from the plant of Franklin Stainless

Corporation in New York to a consignee at Broken Arrow,

Oklahoma. An employee of Marlo accompanied the rig to the

plant and back to Marlo’s place of business in New Jersey. The

P.1.E. sign was on the vehicle at the time. The jury could have

found that Marlo was aware of the sign and that it knew that

this shipment had no connection whatsoever with P.I.E. It

could also find that Marlo knew that the shipment would be car-

ried without valid operating authority of any kind, and was in-

different to this absence of authority.

The unit, besides operating without authority, carried a load

which was over the weight limits for several states on the route.

The drivers selected a route designed to avoid weight stations.

Singleton testified that the P.I.E. sign might be helpful in

avoiding ‘‘policemans and highway patrolmans.’’ There is no

evidence that Marlo was aware of the overload, specified the

route to be followed, or took note of possible involvements with

**the law.”’

Marlo paid an advance to the drivers before the trip began.

There was evidence that Marlo was to collect the freight charges

from the shipper or the consignee, retaining 25% and remitting

the balance to Tabor. The evidence as to the actual monetary

settlement following the accident was not developed, and seems

immaterial.

ome al cam

1. Marlo’s Liability

The issue of Marlo’s liability was submitted by an instruction‘

requiring findings on issues now disputed, as follows:

INSTRUCTION NO. 8

Your verdict must be for plaintiffs Cathy Johnson,

Thomas R. Johnson, and Rebecca Johnson and against

defendant Marlo Transport Corporation if you believe:

Second, Lee Brown, Jr., was operating the Kenworth

Truck within the scope and course of his agency for Marlo

Transport Corporation at the time of the collision, and

see ee *

Acts were within the ‘‘scope and course of agency’’ as

that phrase is used in this instruction if:

1. They were performed by Lee Brown, Jr. to serve the in-

terests of Marlo Transport Corporation according to an

express or implied agreement with Marlo Transport Cor-

poration either controlled or had the right to control the

physical conduct of Lee Brown, Jr.

Marlo argues, vigorously, that there is no right to control,

Brown as he headed west with the truck. It asserts that it proper-

ly retained the proprietor of the truck, (whether Tabor, Brown,

Singleton, or some combination of the three) as an independent

contractor, to achieve a particular result by means chosen by the

contractor, that it had no right to control the truck as to the

details of operation, and that there is no basis for vicarious

liability. These arguments, if sound, would result in judgment

for Marlo notwithstanding the verdict.

* This instruction is based on MAI 13.06.

se, ee

Perhaps it will be helpful first to explore the practicalities of

the situation rather than the legalities. Marlo was in touch with

a customer who had a truckload of steel. It was looking for a

truck. Brown and Singleton had a truck provided to them by

Tabor, who had leased it, and, with full authority from Tabor,

were trying to locate payloads. Marlo and the truckers got

together on a proposition to haul a load for Franklin Steel to

Broken Arrow, Oklahoma. They did not put the details in

writing but rather operated informally. Marlo was to collect

from the customer, retain 25%, and remit the balance to Tabor.

Nobody seemed to have the least concern about the total

absence of operating authority.

Now let us return to the legalities. The arrangement can best

be described as a ‘‘joint venture.’’ The parties undertook a par-

ticular project, for mutual benefit and profit. It makes no dif-

ference whether the venturers are Mario and Tabor, with Brown

and Singleton considered to be servants of the venture, or

whether Tabor, Brown and Singleton are to be considered as ac-

ting together on one side of the venture with Marlo on the other.

[3-6] A joint venture is a species of partnership.’ The distinc-

tion between a joint venture and a conventional partnership is

that the former exists for a particular, defined purpose.

Although a joint venture is a consensual arrangement, no par-

ticular formalities are necessary. There may perfectly well be a

joint venture for a single truck haul.* There is a mutual agency

* See Howard v. Winebrenner, 499 S.W.2d 389, 396 (Mo.1973);

Jeff-Cole Quarries, Inc. v. Bell, 454.S.W.2d 5, 15 (Mo.1970): Swindell

v. J.A. Tobin Construction Co., 629 S.W.2d 536, $42

(Mo.App.1981).

* A “joint adventure’’ is often defined as an association of two or

more persons to carry Out a single business enterprise for profit. See

Howard v. Winebrenner, 499 S.W.2d 389, 396 (Mo.1973); Jeff-Cole

Quarries, Inc. v. Bell, 454 S.W.2d 5, 15 (Mo.1970); Bell v. Green, 423

S.W.2d 724, 731 (Mo. banc 1968); Pigg v. Bridges, 352 S.W.2d 28, 33

(Mo. banc 1961).

among the venturers for activities within the scope of the ven-

ture, and all have equal right of control.’ Venturers, moreover,

are jointly and severally liable for torts committed within the

scope of the venture."

[7] Marlo, then, was instrumental in launching and directing

the truck journey. This is not a situation in which Marlo should

be allowed to escape liability by asserting independent contrac-

tor status. Our courts have been hesitant to uphold claims for

this kind of immunity. There is a distinct tendency to find that

truck operators are agents or servants rather than independent

contractors.’ Marlo’s case is not helped by the fact that it did

not try to place the load with a regular, certified carrier, having

regular routes and published tariffs, but rather did business with

itinerant truckers with no semblance of operating authority. It is

easier to find an independent contractor relationship when the

purported contractor holds itself out to the public as having a

regular and established business.'° But the illegality of the

operation is not the controlling circumstance. The usual rule

holds those who engage in business for profit liable in damages,

’ As a general rule in order to constitute a joint venture there must

be a mutual right of control. Howard v. Winebrenner, 499 S.W.2d

389, 396 (Mo.1973). See also supra note 6.

* See supra note 6.

* See, e.g., Madsen v. Lawrence, 366 S.W.2d 413, 415 (Mo.1963),

where this Court held that the trial court did not abuse its discretion in

granting a new trial where substantial evidence introduced in the case

justified a finding that a driver of a dump truck was a servant rather

than an independent contractor in a personal injury suit against the

defendant-excavator. appropriate factors are set out in Restatement

(Second) of Agency § 220 (1958), which our courts have followed with

some regularity.

'* Cf. King v. Young, 107 So.2d 751 (Fla.App. 1958); Gross vy.

Eustis Fruit Co., 160 So.2d 55 (Fla.App.1964), involving freight

brokers who arranged loads with certified carriers.

on a ee

on the usual negligence principles, to those who are injured in

the course of the business operations. There is no reason to

relieve Marlo of this normal and usual liability.

{8] Marlo is not being held liable on a theory which was not

submitted to the jury. The instruction clearly submitted agency,

with its constituent elements of benefit and right of control.

Marlo, of course, could not exercise effective control while the

truck was on the highway but, as is usual in joint ventures, the

participants had their assigned roles in the total project. No

showing of right of control over and above that which follows

as of course from a showing of joint venture need be made. The

instruction is supported by the evidence, and the verdict was

properly rendered on it.

2. P.LE.’s Liability

The question of P.1.E.’s liability requires a more intricate

legal analysis. There is no claim, and no evidence, that the truck

was on a mission for P.I.E. at the time of the fatal accident. The

plaintiffs, rather, seek to establish the vicarious liability of

P.1.E. through the provisions of the Interstate Commerce

statutes, and regulations adopted by the Interstate Commerce

Commission pursuant to those statutes, governing the use by

certified carriers of rolling stock belonging to others.

The verdict directing instruction'' required findings on

disputed issues as follows:

Second, Pacific Intermountain Express Company leased the

truck driven by Lee Brown, Jr. and provided a sign to be

displayed on the truck identifying Pacific Intermountain

Express Company as the carrier, and

—__

'' Based on MAI 13.06, 17.13, 19.01 and 20.02 modified.

— A-10 —

Third, Pacific Intermountain Express Company failed to

remove the sign from the truck before the collision of

November 19, 1978, and

All hypotheses of this instruction are supported by the

evidence. The question is whether the instruction submits all the

contested facts necessary to support a recovery against P.I.E.

Motor carriage of freight in interstate commerce is closely

regulated. Regulation of leases of rolling stock by a certified

carrier for use in operations under its certificate is especially

strict.'? One important purpose of the regulatory scheme is to

protect persons who are injured in highway accidents,'’ by in-

creasing the likelihood that a substantial entity will be available

to respond to any judgment rendered. The federal statute and

regulations have been held, in numerous cases from different

jurisdictions, to have a definite and substantial impact on tort

liability. These holdings are not mandated by any controlling

authority from the Supreme Court of the United States, but

rathter represent the consensus of judicial authority based on

analysis of statutory policy and implementing regulations.

'? The regulations codified at 49 C.F.R. § 1057.4(1978), provide

that an authorized carrier may lease non-owned equipment so long as

the lease provides for ‘‘exclusive possession, control, and use of the

equipment’’ for the duration of the lease. Such leases must specify

their duration, which in most circumstances may not be less than 30

days. Regardless of the minimum duration stated in the lease, the car-

rier is nevertheless obliged to (1) obtain a signed receipt from the

lessor for return of the equipment, and (2) remove its identifying signs

and placards.

'* In American Trucking Ass'ns v. United States, 344 U.S. 298, 73

S.Ct. 307, 97 L.Ed. 337 (1953), the United States Supreme Court

recognized that the strict :egulatory scheme imposed on autnorized

carriers was designed to provide a financially responsible party to

stand behind any interstate trucking operation which negligently in-

jures members of the traveling public. See also Transamerican Freight

Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, %

S.Ct. 229, 46 L.Ed.2d 169 (1975); Alford v. Major, A70 F.2d 132 (7th

Cir. 1972); Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983).

— A-ll —

This Court has spoken on the subject only in Brannaker v.

Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968).

Both the plaintiff and P.I.E., understandably, try to glean sup-

port in Brannaker for their respective positions. There the plain-

tiff sued for damages sustained in a collision with a tractor-

trailer unit owned by Murray, but bearing signs indicating

operation under the authority of Sykes Transport Company, a

certified carrier. Murray had leased the unit to Sykes for two

years and customarily drove the truck while hauling freight at

Sykes’ direction. Sykes and Murray had a disagreement and,

after a point, Murray did no more hauling on direct orders from

Sykes. The tractor continued to display Sykes’ sign, however,

and Murray hauled loads for other certified carriers, under trip

leases, which were permitted under the lease and governing

regulations. The Court found that all trip leases had terminated

at the time of the accident. There was disputed evidence as to

Sykes’ efforts to terminate its lease and to reclaim its licenses

and signs. The Court found that there was a jury issue as to

whether the lease was still in effect, so that Murray would be

operating under Sykes’ authority.

The Court also found, in Brannaker, a jury issue as to

whether Murray, at the time of the accident, was engaged in

Sykes’ business, or was engaged in a purely personal mission in

returning to his home. We held that the maximum effect of ICC

regulations would be to make the certified carrier liable as

owner, and that the owner would not be responsible for the

employee’s use of the vehicle in a purely personal mission. This

holding is more restrictive of liability than some courts would

decree.'* But this part of the opinion is not pertinent, in the view

'* Schedler v. Rowley Interstate Transportation Co., 68 [.2d 7, 11

Ill.Dec. 541, 368 N.E.2d 1287 (1977) (carrier was held vicariously

liable to the plaintiff for injuries sustained after the trailer had been

dropped off at carrier's terminal and the lessor of the tractor was driv-

ing it to his home); Cox v. Bond Transportation, Inc., 53 N.J. 186,

249 A .2d 579 (N.J.1969), cert. denied, 395 U.S. 935, 89 S.Ct. 1999, 23

L.Ed.2d 450 (1969) (carrier was held liable for an accident involving a

leased tractor, bearing its decals, while used by the driver for personal

transportation).

— A-i2 —

we take of the case, because here the evidence shows beyond

dispute that the unit was hauling regulated dry freight at the

time of the accident.

{9] P.I.E. argues that it has only trip leases for rolling stock it

does not own and that any trip lease for the 1978 Kenworth ex-

pired when the cargo reached its distination. Trip leases are

valid under the governing statute and regulations only in

isolated situations, one of which involves back hauling after

transporting a load of produce, which enjoys an agricultural ex-

emption.'* Other leases of rolling stock by a certified carrier

must be for a minimum 30-day period. The plaintiffs argue that

it must be assumed that there was a minimum 30-day lease

which had not expired because P.1.E. did not meet the burden

of showing that there was a valid trip lease. In the view we take

of the case we do not have to resolve their conflicting positions

bur rather assume, for purposes of this opinion, that the last

journey of the 1978 Kenworth under P.I.E.’s authority was

covered by a valid trip lease.

[10] The signs or placards are essential parts of any lease of

rolling stock by a certified carrier. They must show the lessee

carrier’s name and operating number, and must be serially

numbered in the carrier’s own series.'* The regulation'’ provides

that, at the termination of the trip,

'§ Section 1057.4(a)(3)(i(B) permits the use of a trip lease when a

truck is engaged in the carriage of agricultural commodities exempt

under 49 U.S.C. 303(b)(6).

(b) Where the motor vehicle so to be used in one which has

completed a movement covered by section 203(b)(6) of the Act

and such motor vehicle is nexi to be used by the motor carrier in

a loaded movement in any direction, and/or in one or more of a

series of movements, loaded or empty, in the general direction

of the general area in which such motor vehicle is based;

'* 49 C.F.R. § 1057.4(d) (1978).

'' 49 C.F.R. § 1057.4(d)(1) (1978).

— Aid —

The authorized carrier operating equipment under this

part shall remove any legend, showing it as the operating

carrier, displayed on such equipment, and shall remove

any removable device showing it as the operating carrier,

before relinquishing possession of the equipment.

P.I.E., of course, offered no evidence of any attempt to

retrieve the signs, because it disclaimed knowledge of any deal-

ing with Tabor or his associates. Brannaker suggests that

evidence of such efforts, or of reporting the loss of serially

numbered signs to appropriate authorities, would be significant

in support of the carrier’s theory that the lease had terminated.

See also Atlantic Truck Lines, Inc. v. Kersey, 387 So.2d 411

(Fla.App.1980). P.1.E. was operating at a distinct disadvantage

in trie! after the jury found that there had been a lease of the

1978 Kenworth to it, but we must proceed on the assumption

that the signs were furnished and never returned, and that no ef-

fort was made to reclaim them.

P.1.E., citing Brannaker, argues that the bare existence of a

lease and the failure to reclaim the signs following termination is

not sufficient to found liability, in the absence of a finding that

Brown was operating the truck ‘‘within the scope and course of

employment by an agency of P.I.E.’’ Judge Flanagan of the

Court of Appeals adopted this position. Brannaker does sup-

port the proposition that the mere presence on a vehicle of a

placard furnished by a carrier is not conclusive of the carrier’s

vicarious liability, but it involves two factual possibilities not

here present, as follows: (1) the carrier may have made

reasonable efforts to terminate the lease and to reclaim its iden-

tifying signs; or (2) the vehicle may have been used on a mission

personal to the driver, not involving the hauling of freight for

the benefit of the lessee carrier or anyone else, at the time of the

accident. There is no basis in the evidence in this case for con-

sideration of either of these theories, or any similar theories.

Brannaker emphasizes the great importance of the sign in giv-

ing an appearance of operating authority, and other courts have

— A-14 —

emphasized this circumstance.'* In Mellon National Bank &

Truck Co. v. Sophie Lines, 289 F.2d 473 (3d Cir.1961), fre-

quently cited, a carrier leased a truck from an owner-driver and

furnished signs. When the lease was still in effect, the truck,

displaying the carrier's signs, was used for an illegal back haul

of lumber in which the carrier had no interest. The court found

the carrier liable, nonetheless, observing that the presence of the

signs made it appear that the shipment was moving under its cer-

tificate. That case is similar to this one, but is not completely in

point because there a continuing lease was in effect and the par-

ties contemplated shipments by the lessee’s order at the conclu-

sion of the illegal back haul.

A very recent case discussing the importance of the signs and

consistent with the result we reach is Rodriguez v. Ager, 705

F.2d 1229 (10th Cir. 1983). Judge Doyle’s comprehensive opin-

ion discusses the purpose of the regulatory scheme and analyzes

the leading cases.

[11] We conclude that the instruction here given properly

stated the essential disputed elements of the case and was sup-

ported by the evidence. P.1.E. could probably have obtained the

signs easily by holding up payment until they were returned. By

allowing the trucker to retain the signs, it contributed to the ap-

pearance that the unit was operating under P.I.E.’s authority.

There is no evidence that Marlo thought that it was arranging a

shipment under that authority, or that it dealt with Brown or

Singleton because they were apparently able to palm themselves

off as having authority from P.I.E., but it is quite possible that

'* See, e.g., Wellman v. Liberty Mutual Insurance Co., 496 F.2d

131 (8th Cir.1974); Mellon National Bank & Trust Co. v. Sophie

Lines, Inc., 289 F.2d 473 (3rd Cir.1961); Cosmopolitan Mutual In-

surance Co. v. White, 336 F.Supp. 92 (D.Del.1972); Kreider Truck

Service, Inc. v. Augustine, 76 Ill.2d $35, 31 Ill.Dec. 802, 394 N.E.2d

1179 (1979); Cox v. Bond Transportation, Inc., $3 N.J. 186, 249 A.2d

579 (1969); Leotta v. Plessinger, 8 N.Y .2d 449, 209 N.Y. S.2d 304, 171

N.E.2d 454 (1960); Bankers & Shippers Insurance Co. v. New York v.

Watson, 216 Va. 807, 224 S.E.2d 312 (Va.1976).

— A-I5 —

a truck with unauthorized signs might be able to attract freight

business which would not otherwise fall to it. Singleton’s

testimony made it very clear, furthermore, that he considered

the sign useful in making it easier to navigate without in-

terference from the constabulary. It may be assumed that

checks for the presence of operating authority are made by

responsible officials and that signs may be of substantial

assistance in avoiding arrest or challenge. Viewed in this light,

the requirements of retrieval of a sign has great substantive im-

portance in the regulatory scheme. It is more likely that freight

will be carried by certified, responsible carriers if their signs are

controlled.

[12-15] We conclude that P.I.E. may be held liable for the

truck driver’s negligence, without regard to the continuing force

of the lease, if the jury finds: (1) that a sign or identifying legend

was furnished by the carrier in connection with a lease; (2) that

the sign was on the truck at the time of the accident; and (3) that

the truck was hauling regulated freight at the time of the acci-

dent.'’ Instruction # 7 submitted the first two elements and the

jury necessarily found these in reaching its verdict. The instruc-

tion might be found deficient, in a vacuum, by not requiring a

finding that the truck was hauling regulated freight at the time

but, if there is indeed any genuine issue of fact in this matter, it

was effectively resolved by the jury’s finding that the unit was

being operated in Marlo’s interest. Only issues of fact which are

'* We do not have to determine whether this element could be

satisfied by showing that the unit was being operated in some other

way which would facilitate the movement of non-exempt freight, nor

do we have to deal with a situation such as was present in Brannaker

or in Rodriguez v. Ager, supra, in which there was evidence of a lease

still in effect.

— A-l6 —

genuinely in dispute need be submitted to a jury.*° All instruc-

tions must be read together.?'

The conclusion we reach is based on statutory policy rather

than a conventional respondeat superior theory. It is based on

the failure to comply with an explicit provision of the governing

regulations, designed to identify the responsible carrier and to

inhibit the shipment of hot freight, rather than on a holding that

the lastest lease was not properly terminated. No issue is

presented as to the effect of an attempt by P.1.E. to retrieve the

signs, as no such attempt was shown by evidence. We of course

express no opinion on the effect of failure to comply with the

governing regulation in other respects. Nor do we have to decide

what P.I.E.’s liability would have been had the truck been

operating under lease to another certified carrier at the time of

the accident. Our holding centers on the appearance of authority

created and maintained when a sign is issued and not retrieved.

It was not necessary, then, for the plaintiff to show that the

truck was on an actual mission for P.I.E. at the time of the acci-

dent. Rodriguez v. Ager, supra. P.1.E.’s liability is based on ap-

pearances, not on actualities. It is clear that the unit was hauling

freight for Franklin, and so the ‘“‘personal mission’’ facet of

Brannaker has no application.

RENDELEN, C.J., and GUNN and BILLINGS, JJ., con-

cur.

HIGGINS, J., concurs in part and dissents in part in separate

opinion filed.

*® See, Douglas v. Farrow, 334 S.W.2d 234 (Mo.1960); Brenham vy.

McCoy, 213 S.W.2d 914 (Mo.1948); Ryan v. Burrow, 326 Mo. 896, 33

S.W.2d 928 (1930); Whiteaker v. Chicago, R.I. & P.R. Co., 252 Mo.

438, 160 S.W. 1009 (1913), aff'd in, 239 U.S. 421, 36 S.Ct. 152, 60

L.Ed. 360 (1915).

2! See, Smith v. American Bank & Trust Co., 639 S.W.2d 169

(Mo.App.1982); Goodwin v. S.J. Groves & Sons Co., 535 S.W.2d $77

(Mo.App.1975).

— A-l7 —

DONNELLY, J., dissents in separate opinion filed.

WELLIVER, J., dissents in separate opinion filed and con-

curs in separate dissenting opinion of DONNELLY, J.

WELLIVER, J., withdraws previously filed dissent and files

substitute dissenting opinion and concurs in separate dissenting

opinion of DONNELLY, J., on December 20, 1983.

HIGGINS, Judge, concurring in part and dissenting in part.

I concur in the opinion insofar as it affirms plaintiffs’ judg-

ment against Marlo Transport Corporation.

I cannot join the opinion in its affirmance of plaintiffs’ judg-

ment against Pacific Intermountain Express Company because |

cannot find any evidence to show defendant vicariously liable to

the plaintiffs.

The majority opinion concedes there is no evidence that the

fatal trip was carried on under P.I.E.’s authority or its

knowledge or that it had any interest in the revenues connected

to the trip.

The case against P.I.E. was submitted on a theory that failure

of P.1.E. to remove an identifying sign covering a previous bona

fide lease somehow provided the evidence of vicarious liability

otherwise lacking. It is undisputed that there was no lease or

other enterprise arrangement existing between P.I.E. and Tabor

to provide a right of control on the trip in question as a basis for

vicarious liability.

In these circumstances, plaintiffs failed to make a submissible

case against P.1.E. and the judgment against it should be reversed.

DONNELLY, Judge, dissenting.

Today, the Court ignores settled Missouri law and implants,

again without a rationale, a scheme for redistribution of property.

See Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881

(Mo. banc 1983).

— A-18 —

The principal opinion holds P.I.E. vicariously liable on the

basis of a regulation adopted by the Interstate Commerce Com-

mission and governing leases of rolling stock by a certified car-

rier. In so doing, it imposes a liability on P.I.E. when using leased

equipment greater than its liability when operating its own

equipment. I cannot agree.

The essential questions in this case are (1) whether P.I.E. is

vicariously liable under the Missouri doctrine of joint enter-

prise; and (2) whether Marlo is vicariously liable under the

Missouri doctrine of joint enterprise.

In Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38,

45, 23 S.W.2d 102, 105 (banc 1929), this Court declared ‘‘ ‘that

negligence in the conduct of another will not be imputed to a

party if he neither authorized such conduct, nor participated

therein, nor had the right or power to control it.’ ’’ See Restate-

ment (Second) of Torts § 491, Comments b & c (1965).

In my view, respondents failed to make a submissible case.

I respectfully dissent.

WELLIVER, Judge, dissenting.

I respectively dissent. The Court today strains prior concep-

tions of vicarious liability in order to uphold plaintiffs’ judg-

ment against defendants. Unquestionably, plaintiffs have suf-

fered 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 ap-

pearances, not on actualities.’’ Appearances have nothing to do

with who caused or may have been responsible for plaintiffs’ in-

juries 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 Intermountain Ex-

press (P.I.E.) and Marlo Transport Corp. (Marlo).

The Court defends the judgment against P.I.E. on the basis

of a contrived agency relationship imposed by the Court as a

— A-19 —

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 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 af-

firms 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 imposi-

tion of liability because of the presence of a placard on the truck

will hot encourage carrier-lessees to lease equipment from safer

operators. Rather, it will lead only to stricter control of iden-

tification placards. This is not a valid reason for abandoning

this state’s long established rules of agency.

The Court’s decision with respect to Marlo is equally

tenuous. We previously have described a joint venture as an

‘tassociation of persons to carry out a single business enterprise

— A-20 —

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 com-

munity 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 Marlo was participating in a joint

venture as our prior decisions have defined that term.

In analyzing Marlo’s culpability, it is necessary to understand

the nature of its business. As a ‘‘freight broker,’’ Marlo assisted

in locating available truckers for companies needing materials

shipped. In return for a percentage of the shopping fee, Marlo

placed truckers in contact with its clients. Under this arrange-

ment, Marlo earned its fee upon obtaining a truck to haul the

freight. While Marlo may have had a commercial interest in see-

ing 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 Marlo’s aprticipation 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 Marlo

had an ‘‘equal right of control.’’ Jd. at 241. There is positively

no evidence in the record to support a conclusion that Marlo,

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 contrac-

tor. The Court notes that ‘‘[t]his is not a situation in which

Marlo should be allowed to escape liability by asserting indepen-

dent contractor status,’’ 662 S.W.2d at 242, citing Marlo’s deal-

— A-21 —

ings with a trucker operating without proper I.C.C. registra-

tion. 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 bear-

ing the same placard lacked I.C.C. certification at the time of

Marlo’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.

— A-22 —

APPENDIX B

IN THE MISSOURI COURT OF APPEALS

SOUTHERN DISTRICT

DIVISION ONE

No. 12749 and 12760

(Consolidated)

Cathy Jean Johnson, and Thomas Ray Boatz Johnson and

Rebecca Joyce Johnson by their next friend Jean Johnson,

Respondents,

vs.

Pacific Intermountain Express Co., and

Marlo Transport Corporation,

Appellants.

Appeal from the Circuit Court of Dallas County, Missouri

Honorable Charles V. Barker, Judge

AFFIRMED

CROW, J. Pacific Intermountain Express Co. (‘‘Pacific’’)

and Marlo Transport Corporation (‘‘Marlo’’) appeal' from a

$750,000 judgment in an action for the wrongful death of

Thomas Arthur Johnson (‘‘Johnson’’). § 537.080, RSMo 1978.

Johnson was killed November 19, 1978, when a 1970 Chevrolet

‘*Blazer’’ he was driving north on highway 65 in Dallas County

was struck in the northbound lane by a southbound 1978 Ken-

worth tractor driven by Lee Brown, Jr. (‘‘Brown’’). The tractor

was pulling a trailer carrying 45,402 pounds of ‘‘steel coil’’ from

‘Franklin Stainless Corporation’’ of Port Washington, New

York, to ‘‘T. P. Metal Stamping’’ of Broken Arrow,

Oklahoma. Respondents (plaintiffs below) are Johnson’s sur-

viving spouse (‘‘Cathy’’), minor son and minor daughter.

' Pacific is appellant in number 12760, Marlo in 12749.

— A-23 —

Brown's negligence is undisputed, and there is no contention

that Johnson was contributorily negligent.’

Appellants were held vicariously liable for Brown’s

negligence in the trial court. They contend they are not liable,

and that the trial court erred in denying their respective motions

for directed verdict. Additionally, Pacific contends there is er-

ror in the verdict directing instruction against it, and both ap-

pellants assert the trial court erred in excluding evidence of

Cathy’s ‘‘remarriage.’’

We review the evidence in the light most favorable to

respondents, giving them the benefit of all favorable inferences,

and disregarding appellants’ evidence unless it aids respondents.

Beck v. Modern American Life Insurance Co., 589 S.W.2d 98

at 101 [2], (Mo.App. 1979).

In 1977, Dortha Bill Singleton (‘‘Singleton’’), an ‘‘over the

road truck driver,’’ got acquainted with Roland Healer Tabor

(‘‘Tabor’’) in St. Louis, Missouri. Singleton soon began driving

a tractor owned by Tabor, hauling freight for various carriers

who had “‘ICC authority.’’ Two were ‘‘Riss International’’ and

‘*Kirby Transportation.’’ Tabor leased his tractor to the car-

riers, and the freight was hauled under the carriers’ ‘‘permits.’’

Neither Tabor nor Singleton had ‘‘ICC authority.’”’

In 1978, Tabor obtained the 1978 Kenworth from

‘*Equilease’’ and hired Brown as an additional driver.’ The 1978

Kenworth, unlike Tabor’s first tractor, was not leased ‘‘per-

manently’’ to a carrier with ‘‘ICC authority.’’

? The cause was tried to a jury and neither appellant tendered an in-

struction on contributory negligence.

’ There was a conflict in testimony about the arrangement between

Tabor and his drivers. Singleton said he received a salary from Tabor.

Tabor said he ‘‘leased”’ the tractors to his drivers for a percentage of

ner earnings from the hauls. The conflict does not affect the issues

ore us.

— A —

Singleton drove the 1978 Kenworth on its first haul, carrying

**produce’’ from the west coast to the east coast. According to

Singleton, no ‘‘ICC permit’’ was required to carry that cargo.

Upon completing the trip, Singleton began ‘“‘looking for a

load to go back to the west coast.’’ A truck driver in ‘‘Jersey Ci-

ty’’ gave Singleton a phone number of a ‘‘guy’’ who had west-

bound freight. Singleton phoned, reaching a man whom

Singleton remembered as ‘‘Ray Dean.’’ Dean identified himself

as a Pacific agent and described the freight, telling Singleton

where to pick it up and what the pay would be. Singleton

‘agreed to take the load.’’

Singleton picked up the cargo, obtaining a ‘‘bill’’ from the

‘“‘people”’ at the ‘‘loading place.’’ Singleton took the ‘‘bill’’ to

Dean’s office, where Singleton saw ‘‘signs’’ indicating it was a

Pacific office. Dean gave Singleton a check for several hundred

dollars as an ‘‘advance,’’ and ‘‘cut a lease’’ which Singleton

signed. Dean gave Singleton a copy of the lease, a copy of

Pacific’s ‘‘authority,’’ and ‘‘some different permits for dif-

ferent states.’’ Dean also gave Singleton a Pacific ‘‘sign’’ to af-

fix to the 1978 Kenworth.

Dean told Singleton that in order to get paid, Singleton

should return the ‘‘papers’’ and ‘‘sign,’’ either by mail or in

person. According to Singleton, he delivered the freight to

California, then returned the ‘‘papers’’ and ‘‘sign’’ to Dean on

the next trip east, receiving ‘‘the check to give to Mr. Tabor.”’

Pacific is a carrier authorized by the Interstate Commerce

Commission (‘‘1.C.C.’’) to transport freight. Pacific has three

divisions, two of which perform specialized hauling services

with ‘‘trucks’’ owned by Pacific. The third, All States Division,

is a “‘leasing operation.’’ It leases ‘‘tractor-trailer equipment”’

from individuals and corporations, allowing the lessors to

operate under Pacific’s ‘‘authority.’’ Each lease is for a ‘‘one-

way trip,’’ and is prepared on a ‘‘standard form’”’ identifying

the lessor for expenses, then pays the balance due under the

lease after the consignee has receipted for the freight.

— A-25 —

When each lease is signed, Pacific’s ‘‘terminal manager or

agent’’ supplies ‘‘signs’’ to the driver, to be displayed on the

tractor. The signs ‘‘identify All States Trucking,’’ and bear

serial numbers which are ‘‘logged in’’ by Pacific. Pacific’s

agents are instructed to tell the driver to return the signs and

other documents when the trip is completed.

Sometimes after his first haul for Pacific, Singleton was again

on the east coast with the 1978 Kenworth. He executed another

‘trip lease’’ with Pacific, receiving ‘‘advance money’’ and a

sign. Singleton made this second delivery, and subsequently

returned to the east coast. He took the ‘‘bills’’ to Dean and was

“paid off.’’ This time Dean did not ask for the sign, and

Singleton kept it, allowing it to remain attached to the 1978

Kenworth.

Thereafter, Singleton made ‘‘one or two’’ more trips for

Dean in that vehicle, the unreturned sign still on display.

Singleton’s last hau! for Pacific in the 1978 Kenworth was ‘“‘ten

or twelve days’’ before the fatal collision.

Three days before the collision, Singleton was at a truck stop

on the east coast with Brown and the 1978 Kenworth, looking

for ‘‘a load going west.’’ A ‘‘guy’’ said he had one going to

Oklahoma, and told Singleton ‘‘what it paid and everything.’’

Singleton agreed to take it.

The man made a phone call, then accompanied Brown and

Singleton ‘‘over in New York’’ where they picked up a load at

**Franklin Steel.’’ The load was the one in the trailer when the

collision occurred. The weight of the ‘‘empty truck’’ (33,000

pounds), combined with the weight of the load, exceeded 78,000

pounds. Singleton knew this made the unit ‘‘overweight’’ in

Missouri.‘

* § 304.180, RSMo 1978.

— A-26 —

‘‘A man at the steel mill’’ wrote ‘‘Marlo’’ on a ‘“‘shipping

order,’’ following the word ‘‘Carrier.’’ Brown and Singleton

departed with the load and shipping order. Their next stop was

Marlo’s office in New Jersey. There, Singleton received a $600

‘*advance’’ check, and was told to bring the ‘‘bills’’ back ‘‘sign-

ed’’ in order to receive ‘‘the rest of the money.’’ There was no

discussion about ‘‘the ICC permit.”’

Singleton cashed the check at a truck stop, then headed west

with Brown in the 1978 Kenworth, pulling the freight and

displaying the unreturned Pacific sign.

Marlo is a ‘freight broker’’ which connects ‘‘tractor-trailer

drivers with shippers who need their goods moved.’’ Marlo

owns no “‘trucks or equipment”’ and has no I.C.C. ‘“‘rights for

shipping.’’ When one of Marlo’s customers has goods to ship,

Marlo finds a hauler by contacting drivers it ‘‘normally’’ uses,

and by calling other brokers. Marlo also pays ‘‘lumpers’’’ to

find drivers for certain destinations. Some drivers used by

Marlo have their own I.C.C. ‘‘authority.’’ Others operate

under ‘‘co-op authority.’’ Marlo’s president admitted some

‘run without authority.’’

On, ‘most occasions’’ shippers pay Marlo the entire amount

@! {Ye transportation charge. Marlo keeps 25% and pays the re-

t@amder to the drivers. In the case here, Marlo billed Franklin

Stainless Corporation $1589. How much Marlo received, and

whether it was divided is unclear.*

* According to Marlo’s president, lumpers are ‘‘guys hanging

around’’ the New Jersey Truck Center who load and unload trucks.

* Franklin Stainless Corporation evidently instructed T. P. Metal

Stamping to pay Marlo’s charges. T. P. Metal Stamping made a

‘‘claim’’ for $750, presumably for cargo damaged in the collision.

Marlo’s president did not know who completed the delivery after the

collision, nor did he find a record of payment to Brown or Singleton.

A) —

Singleton knew he and Brown had no ‘‘permits or authority”’

to carry the steel coil from New York to Oklahoma. In

Singleton’s words, they were ‘‘hauling hot freight.’’ Singleton

knew they would get a ‘“‘ticket’’ if stopped. Displaying the

unreturned Pacific sign on the 1978 Kenworth was an ‘‘advan-

tage’’ according to Singleton, because ‘‘all the policemens (sic)

and highway patrolmens (sic) knew about P.I.E. and you’re not

gonna get stopped going down the road with a little P.I.E. sign

on the side of your truck because they’re one of the largest com-

panies in this country.’’’ Singleton’s primary concern was

avoiding weight scales. If he could, he had a ‘‘good chance’’ to

make the delivery ‘‘without getting a citation.’’

Brown and Singleton reached St. Louis the afternoon of

November 17, 1978. After spending the night, they departed at

**6:00 or 7:00’’ the next evening. They planned a route through

Missouri to ‘‘miss the scales.’’ Tragically for Johnson, the route

included highway 65 between highway 54 and Interstate 44.

After a two hour pause at a truck stop in O’Fallon, and sleep-

ing ‘‘part of the night’’ at a truck stop ‘‘in the Ozarks,’’ Brown

and Singleton reached the collision site about 10:10 a.m.

Singleton had been asleep ‘‘back in the bed’’ until minutes

before the impact.

Pacific’s sign was on the 1978 Kenworth when the collision

occurred.

Respondents’ theory of liability against Pacific is different

than their theory against Marlo.

’ At trial, Pacific was referred to as ‘‘P.1.E.”’

* According to one witness, part of the sign was ‘“‘tore off.’’ From

what remained, the witness copied: ‘‘States Trucking. Division of

P.1I.E., Oakland, California, ICC No. MC-730.”’ Pacific’s 1.C.C. per-

mit number is MC-730.

—s

Respondents’ theory against Pacific is that Pacific is

vicariously liable for Brown’s negligence if (a) Pacific leased the

tractor driven by Brown and provided the sign to be displayed

on the tractor identifying Pacific as the carrier, and (b) Pacific

failed to remove the sign from the tractor before the collision.’

The theory is based on I.C.C. regulation 1057.4 (‘‘the regula-

tion’’) which, at the time of the collision, imposed certain

obligations on I.C.C.-authorized carriers using equipment leased

from others.'®

* Instruction No. 7, tendered by respondents and given by the trial

court, states:

**Your verdict must be for plaintiffs Cathy Johnson, Thomas

R. Johnson, and Rebecca Johnson and against defendant

Pacific Intermountain Express Company if you believe:

First, Cathy Johnson is the surviving spouse of Thomas

A. Johnson and Thomas R. Johnson and Rebecca

Johnson are the children of Thomas A. Johnson, and

Second, Pacific Intermountain Express Company leased

the truck driven by Lee Brown, Jr. and provided a

sigr. *o be displayed on the truck identifying Pacific

Intermountain Express Company as the carrier, and

Third, Pacific Intermountain Express Company failed to

remove the sign from the truck before the collision of

November 19, 1978, and

Fourth, the truck driven by Lee Brown, Jr. was on the

wrong side of the road, and

Fifth, Lee Brown, Jr. was thereby negligent, and

Sixth, such negligence either directly caused Thomas A.

Johnson's death or combined with the acts of Ralph

Nevelle Jenkins to directly cause Thomas A.

Johnson's death.’’

[Jenkins was the driver of a vehicle struck by the 1978 Kenworth just

before it hit Johnson's vehicle.)

'* On November 19, 1978, the parts of I.C.C. regulation 1057.4 (49

C.F.R. § 1057.4) pertinent to this case stated:

— A-29 —

“Other than equipment exchanged between motor common

Carriers in interchange service as defined in § 1057.5, authorized

carriers may perform authorized transportation in or with

equipment which they do not own only under the following con-

ditions:

(a) Contract requirements. The contract, lease, or other

arrangement for the use of such equipment:

(2) Written contract required. Shall be in writing

and signed by the parties thereto, or their regular

employees or agents duly authorized to act for them

in the execution of contracts, leases, or other ar-

rangements.

(3) Minimum duration of 30 days when operated

by lesor. Shall specify the period for which it applies,

which shall be not less than 30 days when the equip-

ment is to be operated for the authorized carrier by

the owner or employee of the owner; excepting:

(4) Exclusive possession and responsibilities. Shall

provide for the exclusive possession, control, and use

of the equipment, and for the complete assumption

of responsibility in respect thereto, by the lessee for

the duration of said contract, lease or other arrange-

ment, except:

(7) Copies of lease and their distribution; copy to

be carried on vehicle. Shall be executed in triplicate;

the original shall be retained by the authorized carrier

—~

in whose service the equipment is to be operated, one

copy shall be retained by the owner of the equipment,

one coy shall be carried on the equipment specified

therein during the entire period of the contract, lease,

or other arrangement, unless a certificate as provided

in paragraph (d)(2) of this section is carried in lieu

thereof.

(b) Receipts for equipment to be specific. When posses-

sion of the equipment is taken by the authorized carrier or

its regular employee or agent duly authorized to act for it,

said carrier, employee or agent shall give to the owner of

the equipment, or the owner’s employee or agent a receipt

specifically identifying the equipment and stating the date

and the time of day possession thereof is taken; and when

the possession by the authorized carrier ends; it or its

employee or agent shall obtain from the owner of the

equipment, or its regular employee or agent duly authorized

to act for it, a receipt specifically identifying the equipment

and stating therein the date and the time of day possession

thereof is taken.

(d) Identification of equipment as that of the authorized

carrier. The authorized carrier acquiring the use of equip-

ment under this rule shall properly and correctly identify

such equipment during the period of the lease, contract, or

other arrangement in accordance with the Commission’s

requirements in Part 1058 of this chapter (Identification of

Vehicles). If a removable device is used to identify the ac-

quiring authorized carrier as the operating carrier, such

device shall be on durable material such as wood, plastic,

or metal, and bear a serial number in the acquiring

authorized carrier’s own series so as to keep proper record

of each of the identification devices in use.

(1) Identification to be removed when lease ter-

minated. The authorized carrier operating equipment

under this part shall remove any legend, showing it as

the operating carrier, displayed on such equipment,

and shall remove any removable device showing it as

the operating carrier, before relinquishing possession

of the equipment.”’

— A-31 —

The regulation required, inter alia, a written contract'' speci-

fying the period of the lease, which could not be less than 30

days.'? The regulation also required the carrier to ‘‘properly and

correctly’’ identify the equipment during the lease period.'’

Removable devices were allowed for identification purposes, so

long as they were on ‘‘durable material’’ and bore ‘‘a serial

number in the acquiring authorized carrier’s own series’’ to

enable the carrier to keep a record of each of the identification

devices in use.'* The regulation further provided that when the

lease ended, the lessee was to remove any legend showing it as

the operating carrier before relinquishing possession of the

equipment to the lessor.'’ Additionally, the lessee was to obtain

a receipt from the lessor showing the time and date the equip-

ment was returned to the lessor.'*

The history and purpose of the regulation appear in other

cases and need not be repeated. See American Trucking

Associaitons, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307,

97 L.Ed. 337 (1953); Duke v. Thomas, 343 S.W.2d 656

(Mo.App. 1961); Cox v. Bond Transportation, Inc., 53 N.J.

186, 249 A.2d 579 (1969). We need only note, as did the

Supreme Court of Missouri in Branne‘er v. Transamerican

Freight Lines, Inc., 428 S.W.2d 524 at 528 (Mo. 1968), that

after enactment of the first Motor Carrier Act in 1935 by the

Congress of the United States,'’ one of the principal abuses that

'' 49 C.F.R. § 1057.4(a)(2), footnote 10, supra.

'? 49 C.F.R. § 1057.4(a)(3), footnote 10, supra.

'» 49 C.F.R. § 1057.4(d), footnote 10, supra.

'* Id.

'* 49 C.F.R. § 1057.4(d)(1), footnote 10, supra.

'* 49 C.F.R. § 1057.4(b), footnote 10, supra.

'* Ch. 498, 49 Stat. 543.

— A-32 —

developed was the practice whereby I.C.C.-authorized motor

carriers leased equipment from others and engaged the owners

or someone for the owners to operate the equipment as indepen-

dent contractors to transport cargo for the authorized carriers.

The leases were usually for a single trip or short duration, and

the independent contractors were often unreliable.

These practices, according to the Supreme Court of Illinois in

Kreider Truck Service, Inc. v. Augustine, 76 IIl.2d 535, 394

N.E.2d 1179 at 1181 (1979), made it difficult to determine who

had control or possession of a truck at any given time for the

purpose of determining liability for injury and damages arising

from accidents.

The resulting economic abuses and legal problems prompted

legislation and regulations designed to prevent authorized

motor carriers from delegating the performance of their fran-

chise duties to independent contractors and from engaging in

ruinous competition and evading their public responsibilities.

Brannaker v. Transamerican Freight Lines, Inc., supra, 428

S.W.2d at 528. This is the background of the regulation on

which respondents rely.

Pacific’s contention that its motion for directed verdict was

erroneously denied is two fold.

First, Pacific asserts there was no evidence that the 1978 Ken-

worth was leased to Pacific when the collision occurred.

Specifically, Pacific says respondents failed to prove Pacific

ever leased the vehicle. (Pacific does not contend a lease existed

but terminated before the collision, thus we need not—and do

not—consider that possibility.)

In asserting there was no evidence that Pacific leased the 1978

Kenworth, Pacific argues that (a) the regulation requires a writ-

ten lease, and respondents produced no written lease at trial,

and (b) Pacific presented evidence that it had no record of any

lease with Tabor, Brown, Singleton or Marlo, and no record of

an employee named Ray Dean.

— A-33 —

The argument is inapposite. Singleton testified he executed

written leases for the 1978 Kenworth with Pacific at Dean’s of-

fice, the last lease occurring 10 or 12 days before the collision.

Tabor testified he saw Pacific signs on the 1978 Kenworth, and

that he received Pacific checks from a ‘‘guy’’ in New Jersey.

The evidence was sufficient to support a finding that Pacific

leased the 1978 Kenworth, and the jury so found. We do not

weigh the evidence. Diversified Metals Corporation v. Aaron

Derer & Sons, Inc., 498 S.W.2d 783 at 785 [2], (Mo. 1973).

Pacific’s first attack is without merit.

Pacific’s second attack is that even if it did lease the 1978

Kenworth, there was no evidence that Brown was operating it

‘tin the scope and course of any agency or employment’’ of

Pacific when the collision occurred.

It is, of course, true that Brown was not hauling freight for

Pacific, or even returning from a haul for Pacific, when the col-

lision occurred. Respondents do not contend otherwise.

Respondents assert, however, that Pacific, having leased the

1978 Kenworth, was liable for Brown’s negligence until Pacific

complied with the requirements of the regulation for ter-

minating the lease, i.e., removing the Pacific sign and obtaining

a receipt from Singleton or Brown showing that Pacific had rel-

inguished possession.

If Missouri law is as respondents contend, Pacific is

vicariously liable for Brown’s negligence in hauling freight for

hire so long as the lease remains in effect, and Pacific’s argu-

ment about ‘‘scope and course of agency or employment’”’ begs

the question. If, on the other hand, Missouri law requires

respondents to prove not only that the lease was in effect, but

also that Brown was acting in the scope of his employment by

Pacific and advancing Pacific’s business interest when the colli-

sion occurred, Pacific, on the record here, is not vicariously

liable for Brown’s negligence. Thus, respondents’ theory of

liablity against Pacific, and Pacific’s second attack on the trial

court’s denial of Pacific’s motion for directed verdict, present a

question of law.

= A534 =

The question, in a slightly different setting, was before the

Supreme Court of Missouri in Brannaker v. Transamerican

Freight Lines, Inc., supra, the principal case on which Pacific

relies. There, one Murray leased his tractor to Sykes Transport

Company, an I.C.C.-certificated carrier. Murray drove his trac-

tor (bearing Sykes’ name) pulling Sykes’ trailer, and hauling

under Sykes’ authority. Eventually a disagreement occurred and

Murray returned Sykes’ trailer, and did no further hauling

under Sykes’ direction. However, Murray retained Sykes’

license plates (which Murray had paid for) and continued to

display Sykes’ name on the tractor. Sykes tried to obtain the

licenses from Murray, but did not persist in that effort, nor did

Sykes notify any regulatory agency that the lease was cancelled.

Moreover, Sykes did not attempt to have its name removed

from Murray’s tractor, or to obtain a receipt from Murray

evidencing return of the tractor to Murray’s possession. Murray

made a lease with Riggs Dairy Express Company to haul a cargo

from Missouri to Massachusetts. After making that delivery,

Murray made a lease with Transamerican Freight Lines, Inc.,

for a return trip, hauling a cargo from Connecticut to Indiana.

The freight on both hauls was carried in a trailer belonging to

Murray’s brother. After the Indiana delivery, Murray returned

to St. Louis and stayed several hours, then decided to go to his

home in Flat River. En route, Murray drove the tractor

negligently, injuring the plaintiff.

A jury found for the plaintiff and against Murray, Sykes,

Riggs and Transamerican, and the trial court entered judgment

accordingly. The Supreme Court of Missouri held that Riggs

and Transamerican were justified in dealing with Murray on the

assumption that the Sykes lease was still in effect. 428 S.W.2d at

532 [5]. So long as the tractor was leased to Sykes, 1.C.C.

regulations allowed other certified carriers to enter into trip

leases, the liability of those carriers terminating at trip’s end.

The Supreme Court held the trial court erred in refusing to

direct a verdict in favor of Riggs and Transamerican. 428

S.W.2d at 533 [10].

— A-35 —

Sykes argued, as Pacific argues here, that no case was made

against it because there was no substantial evidence that Murray

was acting in the scope of his employment by Sykes or serving

Sykes’ business interest when the plaintiff was hurt. The plain-

tiff countered by arguing that Murray was serving Sykes’

business interest because Murray was returning to his ‘‘home

base,’’ and that Sykes’ vicarious liability was established as a

matter of law. 428 S.W.2d at 533-534.

The Supreme Court held Sykes acqured a leasehold interest in

the tractor during the existence of the lease, and that the lease

created a master and servant relationship between Sykes and

Murray governed by the Motor Carrier Act and I.C.C. regula-

tions. The legal effect of the lease was that Sykes became liable

for the negligence of Murray to the same extent Sykes was

responsible for the negligence of one of its own drivers when

operating its own equipment. 428 S.W.2d at 534 [11]. The

Supreme Court added that the mere existence of the master-

servant relationship was not sufficient to impose liability on

Sykes in all circumstances for whatever torts Murray may com-

mit, as all acts of an employee are not necessarily in the course

and scope of his employment. The Supreme Court held Sykes

would be liable for Murray’s negligence only on application of

the principle of respondeat superior and proof that Murray was

an employee and acting in the scope of his employment at the

time of the plaintiff’s injury. 428 S.W.2d at 534 [12, 13]. The

Supreme Court held that this issue had not been submitted to

the jury under proper instruction. For that reason, and because

of other instructional error affecting both Sykes and Murray,

the cause was remanded for a new trial as to those two. Riggs

and Transamerican were discharged.

A close reading of Brannaker is necessary to understand the

‘scope of employment”’ issue. Of particular importance is the

Supreme Court’s observation that a finding by the jury that the

Sykes lease had not been terminated would permit the further

finding that Sykes was entitled to a contractual share of the

revenue from the subleases to Riggs and Transamerican, and

— A-36 —

that the Sykes lease was operative both before and after those

hauls. The Supreme Court also noted that when the plaintiff

was injured, Murray ‘‘was making or had made a return trip

from an interstate movement of motor freight.’’ The point

where the return journey ended, or would end, depended on

that issue was uncertain. Sykes’ home office was in Ironton,

some 20 miles south of Flat River. Sykes, however, had an agent

in St. Louis; whether Sykes had a terminal there was disputed.

Additionally, there was no evidence as to where the tractor was

usually kept, and it was unclear where Murray received orders

or reported for hauling assignments.

All this was crucial to the issue of whether Murray had com-

pleted his return trip from the interstate haul, and was simply

going home from work when the plaintiff was injured, or

whether the return trip from the interstate haul was still in pro-

gress. The Supreme Court noted that an employer ordinarily has

no concern with the manner in which an employee gets to work

even though the latter drives the employer’s motor vehicle, and

the employer is even less concerned with transporting the

employee back home after work. Thus, absent evidence

establishing a special interest of the employer in the trip home,

the employee is not in the scope of his employment going home

from work, even though he drives the employer’s vehicle. 428

S.W.2d at 534 [14]. The Supreme Court noted this rule had been

applied to a motor vehicle leased by a certificated carrier to aug-

ment its equipment, and which is operated by the owner-lessor.

Id. As we read Brannaker, this was the ‘‘scope of employment’”’

issue.

We thus interpret Brannaker to hold that (a) when an

1.C.C.-certificated carrier leases a tractor from an owner to

carry freight for the carrier under the carrier’s authority, the

lease remains in effect until terminated in the manner required

by I.C.C. regulations; (b) there was evidence from which the

jury could reasonably find that Sykes did not cancel the lease in

accordance with I.C.C. regulations, and therefore Murray re-

mained a statutory employee of Sykes when the plaintiff was in-

— A-37 —

jured; (c) after completion of the Transamerican delivery,

Sykes’ right of control over Murray and his tractor became ac-

tive and dominant for the return trip to Sykes’ terminal point,

and (d) it was for the jury to decide whether Murray was still en

route to Sykes’ terminal point when the plaintiff was injured, or

whether the terminal point had been reached and Murray was

merely on his way home. If, on retrial, the jury found the

former, Sykes would be vicariously liable for Murray’s

negligence; if the jury found the latter, Sykes would be ex-

onerated.

If our analysis of Brannaker is correct, Brannaker does not

support Pacific’s second attack on the trial court’s denial of

Pacific’s motion for directed verdict. There is no evidence that

Brown and Singleton were on their way home, or on any other

personal errand, when Johnson was killed. The uncontradicted

evidence is that Brown and Singleton were going through

Missouri on an interstate haul from New York to Oklahoma,

and the unreturned Pacific sign was displayed to prevent

discovery of the ‘‘hot freight’’ by law enforcement authorities.

It is, of course, evident that Pacific was not likely to benefit

from the haul during which Johnson was killed, and it is

likewise clear that Brown and Singleton had no commitment for

any future haul for Pacific. These aspects, however, are, in our

opinion, immaterial to the issue of Pacific's vicarious liability.

Under the regulation, the lease of a tractor to an

1.C.C.-certificated carrier must—subject to certain exceptions

not applicable here—provide for the exclusive possession, con-

trol and use of the tractor, by the lessee for the duration of the

lease.'* The regulation has been held to impose vicarious liabili-

ty on a lessee during the term of a lease in cases where leased

equipment was used by a carrier other than the lessee for hauls

unrelated to the lessee’s business. Wellman v. Liberty Mutual

'* 49 C.F.R. § 1057.4(a)(4), footnote 10, supra.

— A-38 —

Insurance Co., 496 F.2d 131 at 136 [1], (8th Cir. 1974); Mellon

National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473

at 476-478 [1, 2], (3d Cir. 1961); Kreider Truck Service, Inc. v.

Augustine, supra; Bankers & Shippers Insurance Co. of New

York v. Watson, 224 S.E.2d 312 at 314-315 [1], (Va. 1976).

If we were to accept Pacific’s argument that it should not be

held vicariously liable for Brown's negligence because Pacific's

business interest was not being served by the haul during which

Johnson was killed, we would undermine the purpose of the

regulation. Furthermore, Pacific’s argument is not supported

by the ‘‘scope of employment”’ cases it cites. Those cases, like

Brannaker, involve the question whether the driver of the leased

vehicle was (a) making or returning from a freight haul at the

time of the tortious act, or (b) simply on a personal mission of

his own. Sharp v. W. & W. Trucking Co., 421 S.W.2d 213 (Mo.

banc 1967); Duke v. Thomas, supra; Kaplan Trucking Co. v.

Lavine, 253 F.2d 254 (6th Cir. 1958); Gackstetter v. Dart Tran-

sit Co., 130 N.W.2d 326 (Minn. 1964).

We hold that respondents’ theory of liability against Pacific is

recognized in Brannaker, and that respondents had no duty to

prove that the cargo being hauled by Brown and Singleton when

Johnson was killed was Pacific freight, or that Pacific’s

business interest was being served by that haul. It was sufficient

for respondents to prove that the 1978 Kenworth was leased to

Pacific at the time of the fatality, that said vehicle was being used

for an interstate haul when the fatality occurred, and that the

fatality was caused by Brown's negligence. The trial court did

not err in denying Pacific’s motion for directed verdict.

We next consider Pacific’s assertions of error in the verdict

directing instruction against it.'’ Pacific says the instruction

should have submitted the issue of whether Brown was

operating the 1978 Kenworth ‘‘within the scope and course of

employment or agency’’ of Pacific at the time of the collision.

'* The instruction appears in footnote 9, supra.

— A-39 —

Pacific also faults the instruction because it failed to provide a

definition of scope and course of employment or agency. As

already observed, respondents’ theory of liability against

Pacific was not based on the premise that Brown and Singleton

were hauling Pacific’s freight or serving Pacific’s business in-

terest when Johnson was killed; respondents’ theory was based

on vicarious liability imposed by the regulation. If, by the

phrase ‘‘scope and course of employment or agency,”’ Pacific is

referring to whether Brown and Singleton were on a personal

mission of their own when Johnson was killed, that matter was

not in issue. All of the evidence shows Brown and Singleton

were making an interstate haul of freight using Pacific’s ‘‘sign.”’

Undisputed facts need not be submitted in jury instructions.

Celatron, Inc. v. Cavic Engineering Co., 432 S.W.2d 794 at 799

[10], (Mo.App. 1968). It was unnecessary for the verdict direc-

ting instruction against Pacific to hypothesize ‘‘scope and

course of employment or agency.”’

Pacific also says the verdict directing instruction against it

failed to require a finding that the 1978 Kenworth was leased to

Pacific when Johnson was killed, that the instruction is vague,

permits the jury to speculate, and constitutes a ‘‘roving commis-

sion,’’ and that the instruction submits evidentiary facts rather

than ultimate issues. We find these contentions unpersuasive,

and detect no such infirmities in the instruction.

We now consider the issue of vicarious liability between

respondents and Marlo. Respondents’ theory against Marlo is

that Brown was Marlo’s servant and was driving the 1978 Ken-

worth in the scope and course of that employment when

Johnson was killed. The verdict directing instruction against

Marlo submitted the master-servant issue in accordance with

MAI 13.06 [1978 Revision].**

* Missouri Approved Jury Instructions, (3d ed. 1981).

—-

Marlo contends the trial court erred in denying its motion for

directed verdict because respondents failed to prove Marlo

either controlled or had the right > control Brown at the time of

the collision, an element required by the verdict directing in-

struction and Missouri law. Skidmore v. Haggard, 110 S.W.2d

726 (Mo. 1937); Barnes v. Real Silk Hosiery Mills, 108 S.W.2d

58 (Mo. 1937). Marlo asserts Brown was an independent con-

tractor, for whose negligence Marlo is not vicariously liable.

Neither Marlo nor respondents cite a case on the relationship

between a ‘‘freight broker’’ (such as Marlo) and the haulers

engaged by the broker to carry freight for the broker's

customers. It is an unresolved issue in Missouri.

The rules for distinguishing between servants and indepen-

dent contractors in Missouri are set out in Dean v. Young, 396

S.W.2d 549 (Mo. 1965); Smith v. Fine, 175 S.W.2d 761 (Mo.

1943); Skidmore v. Haggard, supra, and Barnes v. Real Silk

Hosiery Mills, supra. Those cases apply the criteria in the

American Law Institute Restatement of the Law of Agency.*'

*' The criteria are set out in Skidmore v. Haggard, supra, 110

S.W.2d at 730, and are the criteria of the original Restatement, § 220:

** “(a) The extent of control which, by the agreement, the

master may exercise over the details of the work;

(>) whether or not the one employed is engaged in a distinct

occupation or business;

‘(c) the kind of occupation, with reference to whether, in the

locality, the work is usually done under the direction of the

employer or by a specialist without supervision;

*(d) the skill required in the particular occupation;

‘(e) whether the employer or the workman supplies the in-

strumentalities, tools, and the place of work for the person do-

ing the work;

‘(f) the length of time for which the person is employed;

*‘(g) the method of payment, whether by the time or by the

job;

— A-4) —

The ultimate and decisive test is whether the employer controls,

or has the right to control, the person hired. Barnes v. Real Silk

Hosiery Mills, supra, 108 S.W.2d at 61 [3).

Marlo argues that Brown and Singleton were not under its

control, in that they chose their own route and drove on their

own schedule. Marlo also argues it did not load the cargo or tell

the drivers when it was to be delivered.”

Respondents argue Marlo did exercise control, in that its

‘‘representative’’ went with Brown and Singleton to pick up the

cargo, and Brown and Singleton were given an ‘‘advance’’ at

Marlo’s office and told what to do to receive the rest of their

money after making delivery.

Respondents also point to these additional master-s; vant in-

dicia: arranging for freight hauls by motor vehicles was the

regular business of Mario’’; no significant amount of special

skill was required for the task assigned Brown and Singleton’*;

Brown and Singleton were to be paid by Marlo, not by the con-

‘(_h) whether or not the work is a part of the regular business

of the employer; and

‘(i) whethe or not the parties believe they are creating the

relationship of master and servant.’ *’

Another appears in Restatement 2d, Agency (1958):

**(j) whether the principal is or is not in business.’’

* According to Singleton, he was told by a ‘‘guy at the steel mill,"’

but not by any employee of Marlo, that the consignee expected

delivery ‘‘Sunday"’ (the day the collision occurred).

** Factor (h), footnote 21, supra.

** Factor (d), footnote 21, supra. See Pratt v. Reed & Brown Haul-

ing Co., 361 S.W.2d 57 at 64 (Mo.App. 1962) in which the court

stated the degree of skill required in operating a dump truck is

**minimal.’’

— A-42 —

signor or consignee*’; the consignor contacted Marlo, not

Brown and Singleton, to get the freight shipped to Oklahoma,

and Marlo issued the bill for the hauling charges, this being the

manner in which Marlo customarily transacted its business.**

We also note, however, the following indicia of no master-

servant relationship: Brown and Singleton were engaged in the

distinct occupation of truck driving’’; they supplied the vehicle

to haul the freight**; they were employed by Marlo for only one

haul,’* and they were to be paid by the job, not by time.’®

Viewing the facts in a light most favorable to respondents and

giving them the benefit of all reasonable inferences arising from

the evidence, Smoot v. Marks, 564 S.W.2d 231 at 235 [Il],

(Mo.App. 1978), we cannot convict the trial court of error in

denying Marlo’s motion for directed verdict. We hold the issue

was for the jury. Benham v. McCoy, 213 S.W.2d 914 at 919 [9],

(Mo. 1948). This follows the Restatement view that where there

is no clear inference that a master-servant relationship eXists, or

does not exist, the jury determines the question under instruc-

tion by the court. Restatement 2d, Agency § 220, Comment c to

Subsection (1), p. 487.

** See Leidy v. Taliaferro, 260 S.W.2d 504 at 507 (Mo. 1953) in

which the court noted that payment, though not essential to the ex-

istence of a master-servant relationship, is an ‘‘indicative’’ cir-

cumstance.

** Factor (j), footnote 21, supra.

*” Factor (b), footnote 21, supra.

* Factor (e), footnote 21, supra.

** Factor (f), footnote 21, supra.

* Factor (g), footnote 21, supra.

- A43 —

Before leaving the area of vicarious liability, we observe that

neither appellant briefed the issue of whether there can be

several liability of two persons (not acting jointly) as separate

masters of a single servant for the same act. McFarland v. Dixie

Machinery & Equipment Co., 153 S.W.2d 67 at 69-70 [1], (Mo.

1941). We express no view on whether it would have affected

the outcome. Feste v. Newman, 368 S.W.2d 713 at 714 [1], (Mo.

1963).

We now consider the ‘‘remarriage’’ issue. On February 28,

1981, Cathy married Samuel Lower (‘‘Lower’’). On May 1,

1981, the Circuit Court of Webster County, upon Cathy’s peti-

tion, entered an ‘‘Order Reaffirming Name,’’ declaring Cathy’s

name to be ‘‘Cathy Jean Johnson.’’ Cathy and Lower were still

married to each other at time of trial.

Before trial, respondents filed a motion in limine praying the

court to suppress ‘‘all reference and evidence’’ of Cathy’s mar-

riage to Lower, all references to Cathy by the surname Lower,

and all references to Lower as Cathy’s husband. The trial court

sustained the motion.

During voir dire of the jury panel, respondents’ attorney an-

nounced the names of several people ‘‘related to’’ Cathy, in-

cluding Lower, and asked whether any of those people were

known by any member of the venire. Pacific’s attorney made

the same inquiry. Lower, however, was not identified as Cathy’s

husband. No venireman responded.

Cathy testified, giving her name as Cathy Jean Johnson. She

testified she lived with her children on a rural route outside Con-

way, Missouri. She was not asked about her marital status, and

she made no mention of Lower.

Sundry witnesses testified about ‘‘household services’’

Johnson performed, including appliance repair, motor vehicle

maintenance, yard work and house painting. An economics

professor testified about the lifetime monetary value of those

services, based on Johnson’s normal life expectancy. Ap-

—-

pellants’ attorneys thereupon offered to prove, by cross-

examination of the professor, that the lost services could be per-

formed by a new husband. If the professor so testified, ap-

pellants’ attorneys then offered to prove Cathy and Lower were

married. The offer was refused.

In an action by a widow for the death of her husband, her

marriage after his death will neither (a) preclude her from main-

taining the action, nor (b) affect the amount of her recovery.

Katz v. North Kansas City Development Co., 14 S.W.2d 701 at

709 [11], (Mo.App. 1929); Platt v. Cape Girardeau Bell

Telephone Co., 12 S.W.2d 933 at 936 [4], (Mo.App. 1929);

Davis v. Springfield Hospital, 218 S.W. 696 at 700 [10],

(Mo.App. 1920). However, two later cases have indicated —

though not directly held — that it is improper to withhold

evidence of the remarriage from the jury. In one, Duebelbeis v.

Dohack, 615 S.W.2d 488 at 490-491 (Mo.App. 1981), judgment

on jury verdict for defendant was reversed because of error in

the introductory instruction and error in submitting con-

tributory negligence, thus the comments about the remarriage

issue were advisory only. In the other, Glick v. Allstate In-

surance Co., 435 S.W.2d 17 at 23 (Mo.App. 1968), the trial

court’s dismissal of an action for declaratory judgment was af-

firmed, and the comments about the remarriage issue were dic-

ta. Nonetheless, both cases state that withholding evidence of

the remarriage is inconsistent with the integrity of the judicial

process, and that the proper procedure is for the trial judge to

admit the evidence and instruct the jury that the remarriage is to

play no role in the jury’s determination of the pecuniary advan-

tage which would have resulted from a continuance of the life of

the deceased. See Salsberry v. Archibald Plumbing & Heating

Co., Inc., 587 S.W.2d 907 at 916-917 [18], (Mo.App. 1979).

Pacific asserts the trial court’s ruling prevented Pacific from

cross-examining respondents’ witnesses regarding the ‘‘actual

measure’’ of respondents’ damages, and from cross-examining

—

the professor about ‘‘the basis for his opinion.’’*' Pacific also

says the ruling caused the jury to be misled as to Cathy’s ‘‘true

marital status.’’ Marlo contends the ruling prevented it from

cross-examining respondents’ witnesses ‘‘as to the effect of the

remarriage.”’

These assertions go beyond those made when the issue arose

at trial. Then, as already noted, appellants offered to prove only

that a new husband could perform the household services

Johnson had performed, and that Cathy had a new husband,

therefore the household services were not lost, ‘‘due to the

remarriage.’ This was a bald attempt to mitigate damage by the

widow’s remarriage, contrary to Missouri law. Katz v. North

Kansas City Development Co., supra; Platt v. Cape Girardeau

Bell Telephone Co., supra; Davis v. Springfield Hospital,

supra. The trial court properly refused the evidence on the basis

offered. Even if evidence of the remarriage, alone, were ad-

missible, evidence that services performed by Johnson could be

performed by Lower in mitigation of damage was inadmissible.

If several facts are included in an offer, some admissible and

others inadmissible, then the whole (if properly objected to) is

inadmissible; in other words, it is for the proponent to sever the

good and the bad parts. Lott v. Kjar, 378 S.W.2d 480 at 484

(Mo. 1964).

Whether evidence of the remarriage, alone, might be admissi-

ble on any of the theories now advanced, or for any other

reason, is not for our consideration. The offer as a whole was

inadmissable for the purpose argued to the trial court, and that

is the extent of our inquiry. Rule 84.13(a)’*; Murphy v.

Grisham, 625 S.W.2d 215 at 217 [6], (Mo.App. 1981).

*' Schaible v. Myers, 311 N.W.2d 297 (Mich. 1981).

* Missouri Rules of Civil Procedure.

—

Judgment affirmed.

John C. Crow, Judge

Greene, C.J., and Titus, J., concur.

Flanigan, P.J., concurs in result in part and

dissents in part in separate opinion.

FLANIGAN, J. - (Concurring in result in part; dissenting in

part.)

I concur in the result with respect to the disposition of the ap-

peal of Marlo. With respect to the disposition of Pacific’s ap-

peal, I respectfully dissent.

In my opinion, the attack by Pacific on Instruction 7 is valid.

Pacific does not challenge the adequacy of Instruction 7 insofar

as it submitted the issue of driver Brown’s tort liability to the

plaintiffs. Pacific claims that the instruction is defective because

the jury was required to return a verdict against Pacific on the

basis of Brown’s conduct if the jury found that Pacific leased

the truck driven by Brown, provided a sign to be displayed on

the truck identifying Pacific as the carrier, and failed to remove

the sign before the collision. I agree with Pacific that the forego-

ing findings were not sufficient to impose liability on Pacific for

Brown’s conduct.

In a case involving the liability of a carrier-lessee of a tractor

for the negligence of the owner-lessor-driver in its operation

under a lease agreement under the ‘‘regulatory scheme’”’ of the

Interstate Commerce Commission, the Supreme Court of Il-

linois has said:

**The Supreme Court has not decided and the courts of ap-

peals are not in agreement whether the liability of the carrier-

lesser rests upon common law principles of respondeat superior

(Wilcox v. Transamerican Freight Lines, Inc. (6th Cir. 1967),

371 F.2d 403) or liability is vicariously imposed regardless of the

am Ash} <=

use being made of the vehicle at the time of the occurrence. (See

Simmons v. King (5th Cir. 1973), 478 F.2d 857; Mellon National

Bank & Trust Co. v. Sophie Lines, Inc. (3d Cir. 1961), 289 F.2d

473.) We are of the opinion that it was the purpose of the

regulatory scheme that the carrier-lessee be vicariously responsi-

ble to the public for the negligent operation of the leased vehicle

without regard to whether at the time in question it was being

used in the business of the lessee. (See Cosmopolitan Mutual In-

surance Co. v. White, (D.Del. 1972), 336 F.Supp. 92.) To hold

otherwise would permit injecting into each case the issues of

agency, scope of employment and purpose of the movement out

of which the occurrence arose, thus defeating the declared pur-

pose of the regulations to eliminate the problem of fixing

responsibility for damages and injuries to members of the

public. Absent proof of compliance with sections 1057.4(d) and

1057.4(d)(1), we hold that if Dixon is liable to plaintiff, defen-

dant must be held vicariously liable.’’ Schedler v. Rowley In-

terstate Transp. Co., 368 N.E.2d 1287, 1289 (Ill. 1977).

The principal opinion in Schedler would support the instant

ruling of my colleagues. In Schedler a dissenting opinion by

Judge Ryan discusses the authorities relied upon by the majority

of his colleagues in support of their holding and questions their

supportiveness. In my opinion, however, the decision of our

supreme court in Brannaker v. Transamerican Freight Lines,

Inc., 428 S.W.2d 524 (Mo. 1968), supports Pacific’s attack

upon Instruction 7 and, of course, this court is bound by Bran-

naker.

In Brannaker the carrier-lessee was Sykes. At the time of the

accident ‘‘the name of [Sykes] remained on the tractor, together

with the numbers of the Missouri Public Service Commission

and Interstate Commerce Commission certificates and

permits.’’ Brannaker, p. 527. Referring to the I.C.C. regulation

requiring the removal, at the termination of the lease, of

‘devices bearing the number or numbers of the authorized car-

rier as the operating carrier’’ our supreme court held that the

— A-48 —

regulation ‘‘does not impose liability on a motor carrier using

leased equipmebt for the negligence of an owner-driver of such

equipment greater than the carrier’s liability for the negligence

of its driver when operating its own equipment.’’ Brannaker, p.

529. In making that statement our supreme court cited the

Wilcox case which is mentioned and rejected by the Illinois

Supreme Court in the quotation from Schedler, supra. Our

supreme court also cited Gackstetter v. Dart Transit Co., 269

Minn. 146, 130 N.W.2d 326, 328[2], a case relied upon by Judge

Ryan in his dissenting opinion in Schedler.

In Brannaker our supreme court held that Sykes’ lease of the

tractor was ‘‘still in effect’’ because of ‘‘Sykes’ failure and

neglect to erase its name and numbers from Murray’s tractor, to

secure the return of its license plates, and to notify the

regulatory agencies and other [sic] of the cancellation of the

lease.’’ It will be observed that Sykes’ acts and delinquencies

with respect to the tractor were greater than, but included all of,

the acts and delinquencies which, according to Instruction 7 in

the case at bar, were sufficient to impose liability on Pacific.

If, as the majority opinion holds, the findings requred by In-

struction 7 were sufficient to impose liability on Pacific for the

acts of Brown, many portions of Brannaker dealing with the

liability of Sykes were superfluous.

In Brannaker, at p. 533, our supreme court dealt with the

contention of Sykes that ‘‘there was no substantial evidence that

Murray was acting in the scope of his employment or serving the

business interests of Sykes at the time and place of the accident

ir question.’’ There would have been no need to discuss that

contention if the conduct of Sykes in permitting the I.C.C. sign

to remain on the tractor which Sykes had leased from Murray

was sufficient to make Sykes liable for Murray’s negligence. It

is, however, unnecessary to speculate on the point because at p.

534 of Brannaker our supreme court said: ‘‘Sykes can be held

liable for Murray’s negligence only on an application of the

— A” —

principle of respondeat superior and the burden of proving that

Murray was an employee and was acting in the scope of his

employment at the time in question rests upon the plaintiff.’’

Further, at p. 535, the supreme court said: ‘‘The plaintiff’s con-

tention that Sykes was liable for Murray’s tortious conduct as a

matter of law cannot be sustained.’’

In my opinion the findings of Instruction 7 are insufficient to

support a verdict against Pacific. I disagree with the majority’s

Statement that ‘‘it was unnecessary for [Instruction 7] to

hypothesize ‘scope and course of employment or agency.’ ”’

George M. Flanigan, Judge

- A —

APPENDIX C

IN THE CIRCUIT COURT OF DALLAS COUNTY,

MISSOURI

Case No. 6877

Cathy Jean Johnson, Individually, and Thomas Ray Boatz

Johnson and Rebecca Joyce Johnson, by and through their next

friend, Cathy Jean Johnson,

Plaintiffs,

VS.

Pacific Intermountain Express Co.;

Marlo Transport Company; and Robert J. Smith

as Defendant Ad Litem for Ralph Nevelle Jenkins,

Defendants.

Judgment

Now on this 4th day of February, 1982, this case having come

on for trial commencing the Ist day of February, 1982, and the

trial having continued from day to day from its commencement,

and the jury having rendered its verdict, said verdict having

been signed by jurors Bill Hale, Robert Hunget, Perry Bartee,

Lynn Johnson, Betty Baldock, Emogence Loudermilk, Julia

Percival, Ralph Jackson, Linus Smith, Ernest L. Beck and Ken-

neth Heard, and the court having examined the verdict form

and found it to be proper;

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED as follows:

A. Judgment is entered in favor of plaintiffs Cathy Johnson,

Thomas R. Johnson, and Rebecca Johnson, and against defen-

dants Pacific Intermountain Express Company and Marlo

Transport Corporation in the sum of Scven Hundred Fifty

Thousand Dollars ($750,000.00).

A-S]

B. On the claim of plaintiffs Cathy Johnson, Thomas R.

Johnson, and Rebecca Johnson against Robert J. Smith, defen-

dant ad litem for Ralph Nevelle Jenkins, judgment is entered in

favor of Robert J. Smith, defe

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