argued: January 13, 1961.
MELLON NATIONAL BANK & TRUST COMPANY, EXECUTOR OF THE ESTATE OF JACOB CASALE, DEC'D., AS INTERVENERS, HARDWARE DEALERS MUTUAL INSURANCE COMPANY, PHOENIX INSURANCE COMPANY, OLD COLONY INSURANCE COMPANY, DUBUQUE FIRE & MARINE INSURANCE COMPANY, HARTFORD FIRE INSURANCE COMPANY, NORTHERN INSURANCE COMPANY, NORTHWESTERN NATIONAL INSURANCE COMPANY, ST. PAUL FIRE & MARINE INSURANCE COMPANY
SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, EMILY PETERNAL AND JOSEPH PETERNAL, HER HUSBAND, V. SOPHIE LINES, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, KENNETH F. FRIES AND JANICE A. FRIES, HIS WIFE, AND KENNETH F. FRIES, TRADING AND DOING BUSINESS AS FRIES ELECTRIC AND HARDWARE; AND HARDWARE DEALERS MUTUAL INSURANCE COMPANY, A CORPORATION, V. SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, BELVA ROSS AND J. WILLIAM ROSS, HER HUSBAND, V. SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, J. WILLIAM ROSS, ADMINISTRATOR OF THE ESTATE OF CHERYL FAYE ROSS, DECEASED, V. SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, HARTFORD FIRE INSURANCE COMPANY V. SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, DEFENDANT-APPELLANT; EDMUND WHITEMAN, ADMINISTRATOR OF THE ESTATE OF DORA WHITEMAN, DECEASED, V. SOPHIE LINES, INC., A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, AND THE BALTIMORE & OHIO RAILROAD COMPANY, A CORPORATION, TURNER TRANSFER, INC., A CORPORATION, DEFENDANT-APPELLANT
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Goodrich, McLAUGHLIN and Forman, Circuit Judges.
By McLAUGHLIN, Circuit Judge.
In this collision between a tractor-trailer (truck) and a freight train, our problem is whether the lessee of the tractor-trailer was responsible for its operation at the time. From the stipulated facts the following appears.
The truck was owned by Sophie Lines, Inc., operated by its employee and leased to Turner Transfer, Inc. The latter is a licensed I.C.C. carrier with operating permits limited to the carrying of certain knitting equipment for the areas involved. The owner did not have an I.C.C. permit.
On September 24, 1955 there was thirty day written lease entered into between the owner and Turner. The lease, as called for by I.C.C. Rule Ex Parte No. MC-43, 49 C.F.R. 207.4 et seq., contained the following:
"It is understood that the leased equipment under this Agreement is in the exclusive possession, control and use of the authorized carrier LESSEE and that the LESSEE assumes full responsibility in respect to the equipment it is operating, to the public, the shippers, and the INTERSTATE COMMERCE COMMISSION."
Under the lease the truck and its driver were transferred to the exclusive control of Turner. The collision occurred October 4, 1955, within the period of the lease.
On September 29, 1955, the truck, later in the collision, left Reading, Pennsylvania with half a knitting machine to be delivered at Concord, North Carolina. On the way, the truck stopped at Greensboro, North Carolina, to arrange with the Turner dispatcher at that station for riggers to be on hand at Concord. The dispatcher instructed the driver to proceed to Henderson, North Carolina, a terminal for Sophie Lines, Inc., and to remove the Turner Transfer decals from the side of the truck since there was not immediate need of the truck. Turner had expected sending the truck with others to Amsterdam, New York, to bring a knitting machine back to North Carolina but Sophie Lines had not obtained New York authorization for the truck. The latter was unloaded at Concord and then driven to Henderson where the driver advised the Sophie Lines secretary that Turner had no present use for the truck. The secretary talked with the Taylor-Thayer Lumber Company as to whether that concern needed a truck. It did, so the truck was sent to its plant and there loaded with lumber destined for Elizabeth, Pennsylvania. En route to that place, at West Newton, Pennsylvania, it was in the collision with the freight train as above mentioned. Turner was not notified nor had any knowledge that the truck was to haul lumber for Thayer-Taylor into Pennsylvania at that particular time.
The stipulation goes on to say:
"There was knowledge on the part of Turner Transfer that in the past, in order to avoid an empty trip or deadhead, Sophie had directed this truck to haul lumber of Taylor-Thayer Lumber. Sophie had no ICC permit permitting such haulage nor did Taylor-Thayer Lumber. The permits issued Turner Transfer, Inc. did not authorize any haulage of lumber in Interstate Commerce. Regardless of the lack of ICC authority Sophie Lines, Inc., had, previous to the execution of the lease with Turner Transfer, hauled lumber for Taylor-Thayer Lumber Company on thirteen different occasions prior to the execution of the lease, from March 1955 up to and including September 22, 1955. Subsequent to the execution of the lease Sophie Lines transported lumber for Taylor-Thayer on September 27, 1955. It was for all of these previously named unauthorized haulings that the Interstate Commerce Commission instituted a proceeding in the U.S. District Court for the Eastern District of North Carolina, which action was the United States of America v. Sophie Lines, Inc., a corporation, and Brooks Harris (the president and owner of Sophie Lines) at #9763 Raleigh Division, and in which the named parties were convicted."*fn1
"Both Sophie Lines and Turner Transfer, as previously indicated, had intended that as soon as Sophie Lines received authorization for this truck to transport in New York State the truck would be used by Turner to transport knitting equipment from New York back to North Carolina. On the day of the accident in fact, the owner of Sophie Lines was completing arrangements for this truck as well as several others of his to proceed to Amsterdam, New York, for this purpose."
At the trial there was testimony in the plaintiff's case by an eye witness to the accident that Turner decals were found pasted on the side of the truck cab. The trial court found it to be undisputed that "At the time of the accident, possession of the equipment had not been surrendered to Sophie Lines nor had any receipts been given for the surrender of possession of the equipment. Decals stating 'Leased to Turner Transfer, Inc.' were found near the cab of the truck. Sophie Lines did not have an I.C.C. permit to make the trip in question and a decal carrying the I.C.C. permit number issued to Turner Transfer, Inc., was fastened to the side of the equipment." There was a copy ...
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