dissenting:
I believe the holding in Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 368 N.E.2d 1287, requires the reversal of the decision of the trial court. The issue is not whether the instant movement was intrastate or interstate or whose business was being carried on, Pfister or Kreider, but compliance with the Lease and Interchange of Vehicles Rules and Regulations (49 C.F.R. §1057 (1976)) of the Interstate Commerce Commission.
A lease agreement between an authorized carrier-lessee (Kreider) and owner (Pfister) must comply with these rules and regulations. As discussed in detail in Schedler, the lease must provide for the assumption of responsibility by the lessee for the duration of the lease for the operation of the vehicle (1057.4(a)(2), (3), (4)). If possession and responsibility by the authorized carrier is to be terminated, the rules and regulations require the authorized carrier to obtain a receipt so stating from the owner at the time possession and control are surrendered to the owner-lessor, and require the authorized carrier, not the owner as the majority suggests, to remove or cover the required identifying decals and I.C.C. permit numbers from the vehicle (1057.4(b), (d), (d)(1)). At the time of the accident Kreider’s name and I.C.C. permit number were on the doors of the tractor. Kreider did not obtain the required receipt from Pfister.
Schedler rejected the test of respondeat superior in fixing the responsibility of the authorized carrier in favor of the imposition of vicarious liability “regardless of the use being made of the vehicle at the time of the occurrence.” (68 Ill. 7, 12, 368 N.E. 1287, 1289.) The court concluded by stating:
“We are of the opinion that it was the purpose of the regulatory scheme that the carrier-lessee be vicariously responsible 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 Insurance Co. v. White (D. Del. 1972), 336 F. Supp. 92.) To hold otherwise would permit injecting into each case the issue of agency, scope of employment and purpose of the movement out of which the occurrence arose, thus defeating the declared purpose 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, defendant must be held vicariously liable.” 68 Ill. 7, 12-13, 368 N.E.2d 1287, 1289.
I believe the breadth of this language requires the reversal of the summary judgment in favor of the plaintiff, Kreider Truck Service.