(dissenting).
I respectfully dissent.
I agree that both Smith and Browning were employees of R & M, as such a relationship is determined by New Mexico law. However, it is my opinion that this is one of those situations where state law must yield to federal law.
I agree with the Missouri Court of Appeals in Transport Indem. Co. v. Teter, 575 S.W.2d 780 (1978):
“The cognate provision of § 304 [U.S. C.A.] of the Interstate Commerce Act— that the common carrier under ICC certificate shall have full control and responsibility for the operation of a leased motor vehicle—corrects the historical abuse whereby the carrier engaged an owner of equipment as an independent contractor to transport cargo and thus enabled the carrier to evade, among other responsibilities, liability to the public for injury from the negligence of the contractor. Duke v. Thomas, 343 S.W.2d 656, 658 (Mo.App.1961). The intention of § 304, found by our Supreme Court in Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968), l. c. 529, was to put the use and operation of leased vehicles on a parity with equipment owned by the authorized carrier and operated by its own employees.
In terms of the requirement of § 315 [U.S.C.A.] that a motor carrier secure the public against injury from the negligent operation of motor vehicles used under ICC license, § 304 denies a carrier the defense of independent contractor [Duke v. Thomas, supra, l. c. 659], renders the driver a statutory employee of the carrier [Rannaker v. Transamerican Freight Lines, Inc., supra, l. c. 535] and, on principles of vicarious liability, the carrier liable as a matter of law for the negligence of the driver of a vehicle — owned or non-owned — operated under the certificate of the carrier.”
I think that Smith and Browning were statutory employees of Zero. Assume that some member of the traveling public had been injured or killed in the same accident the negligence of Browning would be imputed to Zero.