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Felbrant v. Able

Decided: October 18, 1963.

JACK FELBRANT, PLAINTIFF-APPELLANT,
v.
CHARLES B. ABLE, DEFENDANT-APPELLANT, AND SERVICE TRANSPORT COMPANY, DEFENDANT-RESPONDENT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

In this personal injury negligence action, the Law Division granted the motion for summary judgment of defendant, Service Transport Company, (hereinafter "Service"), dismissing the action as to it, and denied defendant Able's motion for summary judgment, by which he sought an adjudication that Service, rather than he, was liable for the claims made by plaintiff. Plaintiff's claim against Able has not yet been tried.

Both plaintiff and defendant Able improperly filed notices of appeal from this interlocutory judgment, as though of right, without having the same made final by the trial court pursuant to R.R. 4:55-2 and without having first obtained leave to appeal. Petersen v. Falzarano , 6 N.J. 447, 453 (1951). However, on motion made at oral argument and with the consent of all parties, we granted leave to appeal nunc pro tunc.

The facts are not in dispute, so far as they relate to the single issue of law involved in the respective motions for summary judgment. Accordingly, the motions were appropriately made. R.R. 4:58; Judson v. Peoples Bank & Trust Company of Westfield , 17 N.J. 67 (1954). The legal question involved herein is whether Service, a licensed I.C.C. carrier, having hired Able's tractor-trailer under a three-year written lease for use in its interstate commerce business, is vicariously liable, under the special facts and circumstances of this case, for the alleged negligence of Able, in driving his tractor-trailer into the rear of plaintiff's automobile at the time and place of the accident.

The lease agreement between Service, as carrier, and Able, as owner of the tractor-trailer being leased to Service, is dated April 1, 1960 and, among its other terms, provided that during the period of this lease the vehicles would be in the exclusive possession, use and control of the carrier who held the right to halt the movement of the vehicles; that the vehicles would display the legend that they were being operated under the lease, followed by the carrier's certificate or permit number; that such identification shall be completely removed from the vehicles when services for the carrier are completed under this lease; and that the contract had been entered into with a view to the satisfaction of all requirements of law, rules and regulations.

Service possessed a franchise issued by the Interstate Commerce Commission authorizing the shipment of freight in interstate commerce. It owned and operated several freight terminals, including those located in Norristown, Pennsylvania and Parma, Ohio.

On or about September 9, 1960 Able, pursuant to telephoned instructions from Service's dispatcher, picked up a load of freight at the Norristown terminal of Service and delivered it to Parma, Ohio. After completing this assignment, he received a further work assignment from Service's dispatcher in Ohio to transport a load of freight from Parma to the Port Newark terminal in Newark, New Jersey. He

completed this assignment, delivering the load at the Port Newark terminal.

Able then communicated with Service's dispatcher at the Norristown terminal for his further work assignment. This dispatcher advised Able that there were no further work assignments at that time. At the request of Able, Service's dispatcher at Norristown granted Able permission to be taken "off further service" in order to allow him to return directly to his home in Pottstown, Pennsylvania, about 20 miles from the Norristown terminal, so that Able could attend his ailing wife.

It was during this homeward trip on September 13, 1960, while Able was driving the empty truck along Route 1 in Elizabeth, New Jersey, that the collision with the rear of plaintiff's automobile occurred for which plaintiff instituted his civil action. At the time of the accident, the lease agreement between Service and Able was still in full force and effect, and, so far as we can gather from the record, Service's legend had not been removed from Able's vehicle.

The modus operandi under the leasing agreement between Able and Service was described in depositions. Thus, Frank Schlad, Service's vice-president in charge of safety and industrial relations, testified that the lease obligated Able to haul freight exclusively for Service, which had eleven terminals and whose licensed interstate commerce carrier business covered seven states, including Ohio, Pennsylvania and New Jersey. Service's I.C.C. registration number and Service's name, with its address as Cleveland, Ohio, were placed on Able's vehicle when the leasing agreement was entered into and, according to Schlad, were on Able's vehicle on the day of the accident that ...


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