Jackson Trucking Co. v. Interstate Motor Freight System

DISSENTING OPINION

Royse, J.

I- cannot agree with the conclusion of the majority opinion in this case. I do agree that the decedent was an employee and not an independent contractor. For the reasons hereinafter stated, I believe the award of the Full Industrial Board should be affirmed.

In my opinion the provisions of the trip, lease agreement set out in the majority, and the uncontradicted evidence of the appellee Interstate Motor Freight Sys*558tem, lead inescapably to' the conclusion the deceased was an employee of appellant.

The facts disclose there was a contract between Interstate and the appellant whereby Interstate leased for the trip from Toledo to Evansville the equipment and driver of appellant. By the terms of this agreement appellant was required to furnish a driver who was physically able and capable to drive its truck under the rules of the Interstate Commerce Commission and the safety department rules of Interstate. In its brief under “Condensed Recital of the Evidence” appellant quotes the Interstate dispatcher as stating appellant was listed as the operator and decedent as the driver of the truck.

There is nothing in this contract or in the evidence that would lead even to an inference that Interstate had any right to control decedent except as the employee of appellant. They had no right to discharge him. They made no deductions for social security. They were not obligated to pay decedent anything for his services. There is not a scintilla of evidence in the record to indicate that appellant, if it chose, could not have discharged decedent while he was driving the truck it was operating for Interstate.

I cannot agree with the tenuous distinction which the majority make between the facts in this case and those in the case of Turner v. Schumacher Motor Express, Inc. (1950), 230 Minn. 172, 41 N. W. 2d 182. In my opinion the controlling facts in that case and those in this case are identical. In that case the Supreme Court of Minnesota said :

“As applied to the situation before us, these facts have been generalized into the rule that ‘An employee furnished to accompany an instrumentality let by the owner thereof to another, * * * (ordinarily) remains the employee of such owner.’ *559Campbell v. Connolly Contracting Co., 179 Minn. 416, 420, 229 N. W. 561, 563. Particular reason fob ' the rule- is found in the fact that the lessor ordinarily will want to send his own operator with a valuable machine to see that it is operated and cared for properly. Anderson v. Abramson, 234 Iowa 792, 13. N. E. 2d 315; Boehck Equipment Co. v. Industrial Comm., 246 Wis. 178, 16 N. W. 2d 298; Lowell v. Harris, 24 Cal. App. 2d 70, 74 P. 2d 551. We feel that the rule must be applied in the circumstances of this case. Although the lease purported to give exclusive control over the: truck to Schumacher at the time in question,., that control, insofar as the driver was concerned,' amounted only to the right to prescribe the cargó, destination, and route. In Antonelly v. Adam, 175 Minn. 438, 221 N. E. 716, supra, we said that the decisions of this court are in accord with cases holding that, where the owner of an automobile lets it for hire with a driver to another for a tern-.'" porary purpose, the owner remains liable for the. negligence of the driver in managing or operating the machine, although the hirer directs the driver when and where to go, whom to carry, and what routes to take.”

I believe the reasoning and conclusion in that case are based on sound principles of logic and law and should be followed in this case.

Note. — Reported in 104 N. E. 2d 575.