dissenting. I respectfully dissent from the ill-conceived judgment reached by the majority which establishes that all carrier-lessees are liable as a matter of law for accidents that occur while their lease is in effect and I.C.C. placards are displayed on the subject vehicle, without regard to the appropriate status or action taken by the driver of the vehicle.
The seminal case on the issue of carrier-lessee responsibility is Thornberry v. Oyler Bros., Inc. (1955), 164 Ohio St. 395, 58 O.O. 189, 131 N.E. 2d 383, paragraphs one and three of the syllabus, which provide in pertinent part:
“Where a common carrier of freight by motor vehicle possesses Public Utilities Commission and Interstate Commerce Commission permits, leases in its operations, from an independent contractor, a vehicle, including the services of a driver, and such vehicle is operated under the carrier’s permits, such driver is deemed to be under the direction and control of the carrier, and, under the doctrine of respondeat superior, the latter is fully responsible for the actions and conduct of the driver within the scope of the carrier’s business.”
“* * * [W]here the driver after unloading the freight takes the tractor-*268trailer unit, represents it as his own and contracts with another party to haul freight for him to a point not covered by the permits, and where such action of the driver is for his own benefit and profit, without the knowledge, consent or participation of the original carrier, and, while on his way to deliver the freight he is hauling for his own benefit, the driver negligently causes an accident, the original carrier is not liable for his conduct, even though the accident occurs on a road upon which the driver would be traveling had he not departed from the original carrier’s instructions.” (Emphasis added.)
See, also, McDougall v. Glenn Cartage Co. (1959), 169 Ohio St. 522, 9 O.O. 2d 12, 160 N.E. 2d 266, paragraph three of the syllabus (“Where a commercial motor truck, bearing the name and distinctive markings of a certified transportation company engaged in the common carriage of goods, with a list under such name of ICC and PUCO permits and numbers, * * * and collides with another vehicle, a rebuttable presumption or an inference arises not only that such truck belonged to the one whose name and markings it carried but also that it was being operated on his business at the time of the collision.”). In Thomberry, the driver had completed a delivery for the lessee and was instructed to return to the lessee’s place of business. After unloading the freight, however, the driver contracted with a third party and hauled an unauthorized load for his own benefit without the knowledge or consent of the lessee. While committing the frolic and detour, the driver negligently caused an accident. The court decided that the lessee was not liable for the negligence of the driver because the unauthorized trip was a deviation and departure from the scope of the lessee’s business. Id. at paragraph three of the syllabus.
In applying Thornberry, supra, the United States Sixth Circuit Court of Appeals, in Wilcox v. Transamerican Freight Lines, Inc. (C.A.6, 1967), 371 F. 2d 403, certiorari denied (1967), 387 U.S. 931, rejected the assertion that I.C.C. regulations fix absolute liability upon the lessee. Instead, the court held: “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 [or lessee] of a motor vehicle for the acts of his employee, is governed by the principle of respondeat superior. * * *” (Citation omitted.) Id. at 404. Thus, the accepted position in Ohio rejects the imposition of strict liability on carrier-lessees and allows the presumption created by the I.C.C. regulations to be rebutted by applying respondeat superior concepts and showing that the driver was not acting within the scope of his employment with the lessee at the time of the accident.
The majority of this court in raising the irrebuttable presumption of an employment relationship between the carrier-lessee and the driver of the vehicle states that applying a strict construction of the I.C.C. regulations does a better job of advancing the interests of the public at large, by requiring carrier-lessee trucking companies to scrupulously enforce safety standards on their leased vehicles. I fail to see what public policy rationale the majority is using to overrule thirty-six years of precedent. There is no showing in this case that absolute liability placed upon carrier-lessees creates increased safety awareness and implementation. Further, the record is silent as to how this public policy measure would change the outcome in this case.
The majority does concede that the carrier-lessee may seek contribution *269and/or indemnity from other potentially responsible parties, but it ignores the fact that complete liability has already been attached, as a matter of law, to the carrier-lessee. Therefore, the carrier-lessee which has been found liable per se must choose among other potentially liable parties, whose solvency is questionable, in order to seek redress for liability it otherwise would not incur under an appropriate respondeat superior analysis.
Accordingly, for the reasons expressed above, I would affirm the judgment of the court of appeals.