Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2730 March Term, 1979.
John J. O'Brien, Jr., Philadelphia, for appellant.
Paul R. Anapol, Philadelphia, for Wilkerson, appellee.
James M. Marsh, Philadelphia, for Fruehauf, appellee.
Wieand, Olszewski and Cercone, JJ.
[ 360 Pa. Super. Page 526]
Andrew Wilkerson was seriously injured when he was ejected from a tractor trailer which collided with an oncoming vehicle in Vernon Township, New Jersey. The tractor trailer was owned and operated by Lyle Jordan. The unit had been leased to Fisher and Brother, Inc., which, in turn, had leased the vehicle to Allied Van Lines, Inc. (Allied). The vehicle was being operated under authority contained in a Certificate of Convenience and Necessity which had been issued to Allied by the Interstate Commerce Commission. Wilkerson commenced an action against Allied and also against Fruehauf Trailer, a division of Fruehauf Corporation, which had been hired by Allied to inspect and repair the vehicle's braking system but which, it was alleged, had done so in a negligent manner. A jury returned a verdict
[ 360 Pa. Super. Page 527]
against Allied alone*fn1 and awarded damages of $800,000.00. The trial court added delay damages pursuant to Pa.R.C.P. 238 and, after post-trial motions had been denied, judgment was entered in favor of Wilkerson and against Allied in the amount of $1,182,027.36. Allied appealed.
Wilkerson's claim against Allied was based upon provisions of the Interstate Common Carrier Act which requires that a motor carrier assume direction and control of leased vehicles. This principle was explained by the Court of Appeals for the Fifth Circuit in Price v. Westmoreland, 727 F.2d 494 (5th Cir.1984) as follows:
In order to protect the public from the tortious conduct of judgment-proof operators of interstate motor carrier vehicles, Congress in 1956 amended the Interstate Common Carrier Act to require a motor carrier to assume full direction and control of leased vehicles. 49 U.S.C. §§ 10927(a)(2) and 11107(a)(4) (formerly 49 U.S.C. §§ 315 and 304(e)(2) respectively). Pursuant to these regulations the ICC has promulgated written lease requirements for interstate carriers . . . which require the carrier lessee to "assume complete responsibility for the operation of the equipment for the duration of the lease." 49 C.F.R. § 1057.12(d)(1).
Id. at 496.*fn2 See: Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 36-38, 96
[ 360 Pa. Super. Page 528]
S.Ct. 229, 233-234, 46 L.Ed.2d 169, 176-177 (1975); Rodriguez v. Ager, 705 F.2d 1229, 1232-1233 (10th Cir.1983); White v. Excalibur Insurance Co., 599 F.2d 50, 52-53 (5th Cir.), cert. denied, 444 U.S. 965, 100 S.Ct. 452, 62 L.Ed.2d 377 (1979); Carolina Casualty Insurance Co. v. Insurance Co. of North America, 595 F.2d 128, 135-137 (3d Cir.1979); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89, 91-92 (4th Cir.1973); Simmons v. King, 478 F.2d 857, 866-867 (5th Cir.1973); Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3d Cir.1961); Riddle v. Trans-Cold Express, Inc., 530 F.Supp. 186, 188 (S.D.Ill.1982).
[ 360 Pa. Super. Page 529]
Because the statute and the regulations adopted pursuant thereto impose upon the carrier "both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier's responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles." White v. Excalibur Insurance Co., supra at 53, citing Simmons v. King, supra. The effect of the statutes and regulations is to make the carrier-lessee vicariously liable for injuries caused to the traveling public by virtue of the negligent operation of any vehicle leased to it and operated under its certificate of necessity. See: Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., supra; Price v. Westmoreland, supra; White v. Excalibur Page 529} Insurance Co., supra; Mellon National Bank & Trust Co. v. Sophie Lines, Inc., supra; Riddle v. Trans-Cold Express, Inc., supra; Matkins v. Zero Refrigerated Lines, Inc., 93 N.Mex. 511, 516, 602 P.2d 195, 200 (1979).
Allied contends in this case that it should not be held vicariously liable for the negligence of Jordan because Wilkerson was not "a member of the traveling public" which the statute and regulations were intended to protect. Wilkerson made a living by helping drivers load and unload their tractor trailers. On the day of the accident, he had been engaged in helping Jordan in the loading and unloading of Jordan's tractor trailer. After work for the day had been completed, Jordan provided transportation to Wilkerson so that Wilkerson could reach a destination convenient to him. It was then that the accident occurred.
Whether an injured plaintiff is "a member of the traveling public" at the time of the accident and, therefore, eligible to assert the federally created cause of action against the lessee-carrier, has been a source of conflict among the federal courts. In Proctor v. Colonial Refrigerated Transportation, Inc., supra, plaintiff had been injured while riding as a passenger in a truck which had been leased to Colonial, an interstate carrier, by Bales, the owner-operator of the truck. Bales had hired Proctor, the plaintiff, as an assistant driver. Proctor brought an action for personal injuries against Colonial. At trial, the court instructed the jurors that if they found that Bales was an independent contractor at the time of the accident, they should return a verdict in favor of Colonial. On appeal, after the jury had returned a verdict for Colonial, the Court of Appeals reversed. The Court held that federal law operated to eliminate independent contractor concepts and required Colonial to assume responsibility for the negligence of Bales as the ...