to pay the wages of all drivers including those theretofore hired and employed by owner-operators. Thereafter, beginning in August, 1963 the wages of defendant Darrell G. Cradlebaugh were paid by plaintiff, Ohio Fast Freight, Inc. Plaintiff deducted those wages and any other appropriate charges against the amount due defendant, E. W. Allison, for rental of the equipment, by decreasing the stated percentage formerly paid Allison.
(17) After August, 1963 and through and after November, 1963, Ohio Fast Freight withheld income tax for Cradlebaugh, as well as social security, and paid workmen's compensation premiums to the Ohio Industrial Commission on behalf of Cradlebaugh.
(18) At the instructions of an Ohio Fast Freight dispatcher, a load of material shipped by U.S. Gypsum Company of Warren, Ohio and destined for the same company at Staten Island, New York, was loaded on Allison's trailer and defendant Darrell G. Cradlebaugh, driving Allison's tractor, departed with the trailer for Staten Island on Thursday, November 21, 1963.
(19) Generally, the Mack tractor and Dorsey trailer were used to haul freight between Warren, Ohio and cities in the East. Ohio Fast Freight operated other terminals beside that at Warren, Ohio and, in addition, maintained telephone call stations at various cities where it did not maintain terminals.
(20) At the instructions of a dispatcher for Ohio Fast Freight, a load of material shipped by U.S. Gypsum Company at Warren, Ohio and destined for the same company at Staten Island, New York, was loaded on Allison's tractor and defendant Cradlebaugh, driving Allison's tractor, departed with the trailer for Staten Island on November 21, 1963 (a Thursday).
(21) The freight to U.S. Gypsum Company was unloaded that Friday afternoon, November 22, 1963 at approximately 4:30 P.M. Thereafter Cradlebaugh went to the plaintiff's terminal in Nixon, New Jersey, and arrived there about 5:30 P.M. He found that the dispatcher had gone home.
(22) Cradlebaugh then slept until approximately 3:00 A.M., November 23, 1963 and started West toward New Castle where Allison's garage was located and where the truck was customarily kept when not hauling a load for Ohio Fast Freight.
(23) On Saturday, November 23 at about 11:30 A.M., while defendant Darrell G. Cradlebaugh was driving the equipment enroute West, he was involved in an accident on Route 220 in Bedford County, Pennsylvania. The accident happened while Cradlebaugh was proceeding around a downhill curve on wet pavement and the equipment jackknifed, causing a severe collision with a motor vehicle coming in the opposite direction.
(24) For purposes of this litigation, it is stipulated that the accident was caused by the negligence of defendant, Darrell G. Cradlebaugh, who was primarily liable.
(25) The other motor vehicle was owned and operated by a Walter J. Lafferty who suffered fatal injuries in the accident. His automobile also was damaged.
(26) Ohio Fast Freight has an irregular route certificate from the I.C.C. so that in traveling through Pennsylvania to or from Warren, Ohio on authorized business equipment is authorized to travel upon any highway.
(27) Plaintiff agreed upon a compromise settlement of all claims in the action and the Court of Common Pleas of Bedford County entered an Order approving the compromise and settlement. The settlement provided for the termination of any and all claims against defendant Darrell G. Cradlebaugh, defendant E. W. Allison and plaintiff herein, but specifically reserved to plaintiff any and all claims for indemnity and/or contribution or other claims that plaintiff had or could have against Cradlebaugh and/or Allison.
(28) Plaintiff paid the sum of $65.000.00 in compromise and settlement of the claims. The amount of the settlement was fair and reasonable and is not contested.
Plaintiff contests the relevancy of but stipulates to the accuracy of the following:
(29) Plaintiff had in effect public liability insurance with Glens Falls Company which actually paid the loss.
(30) Defendant Allison had procured and paid the premiums on a policy with Nationwide Insurance Company.
The names of possible witnesses have been disclosed heretofore in the Pretrial Statements. The deposition of defendant, Darrell G. Cradlebaugh was taken on December 17, 1965.
Possible issues of law:
1. Under the terms of the lease agreement (Joint Exhibit 1) as between plaintiff Ohio Fast Freight, Inc. and defendant E. W. Allison, did defendant Darrell G. Cradlebaugh remain solely an employee of Allison after August, 1963 when plaintiff commenced paying the wages of Cradlebaugh under the terms of the collective bargaining agreement (Joint Exhibit 2).
2. If defendant Darrell G. Cradlebaugh did not remain solely an employee of defendant E. W. Allison (as between Allison and plaintiff) after August, 1963, did Cradlebaugh become an employee of both plaintiff and Allison?
3. At the time of the accident was the tractor-trailer being operated in the service of plaintiff, Ohio Fast Freight, Inc.?
4. At the time of the accident was the tractor-trailer being operated in the service of defendant E. W. Allison.
5. At the time of the accident was defendant Darrell G. Cradlebaugh acting within the scope of employment for:
(a) Defendant E. W. Allison.
(b) Plaintiff Ohio Fast Freight, Inc.