dissenting:
The ICC rules require a written contract and require that such contracts vest exclusive possession of, and responsibility for, the equipment in the authorized carrier during the rental, the life of which must exceed 30 days when the driver is the owner. The rules abolish one-way and trip leasing. American Trucking Associations, Inc. v. United States, 344 U.S. 298, 308, 97 L.Ed. 337, 354, 73 S. Ct. 307; Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 428, 46 L.Ed.2d 169, 177, 96 S. Ct. 229, 234.
In compliance with the rules, Rowley used a standard leasing contract which provided for exclusive possession, use, control and also complete assumption of responsibility to the public during the life of the lease. The lease was in effect on the date of the accident.
The driver, lessor Dixon, had no public liability insurance of his own and had no Illinois certification of any sort. He could not have legafiy moved this truck from his home in Savanna, Illinois, unless he was in the service of Rowley. (Ill. Rev. Stat. 1971, ch. 95%, par. 18 — 100 et seq. especially pars. 18 — 701, 18 — 702.) Rowley, by virtue of the lease knew that this truck had an Iowa license. Rowley, further, at the inception of the lease in June had plastic signs glued to the truck stating that the truck belonged to Rowley. These signs were never removed at any time prior to the accident.
The leasing contract here creates a master-servant relationship. (Gunterberg v. B & M Transportation Co., 27 Ill. App. 3d 732, 738, 739.) It is not essential that the master’s control be exercised if he in fact has the power of control. It is the right of control, not the fact of control that is the principal factor in distinguishing a servant from an independent contractor. Gunterberg, at 738; Comment to IPI 2d §50.05 (1971); M. W.M. Trucking Co. v. Industrial Com., 62 Ill. 2d 245, 254-55, 342 N. E.2d 17, 22.
Standards used to determine the relationship are not altered or affected by whether such status arises in context of Workmen’s Compensation coverage or the law of respondant superior. Gunterberg.
When Rowley calls and says bring the truck it seems to me that Rowley has a special interest in having the vehicle and the employee Dixon transported to Dubuque. Annot., 52 A.L.R. 2d 350, 360, §5 (1957); 8 Am. Jur. 2d Automobiles and Highway Traffic §630, also §568 (1963).
Further, when the master furnishes transportation (as here by virtue of the lease) there is an exception to the general rule which is as well established as the rule itself and the employee may be deemed to be on duty during the transportation. Kancevicius v. Moyer, 132 Ill. App. 2d 86, 88.
I would reverse the judgment of the trial court.