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Schmidbauer v. Baltimore and Pittsburgh Motor Express Co.

Decided: May 18, 1962.

SCHMIDBAUER, ETC. ET AL.
v.
BALTIMORE AND PITTSBURGH MOTOR EXPRESS COMPANY



Appeal from the Baltimore City Court; Sodaro, J.

Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

This is an appeal by William T. Schmidbauer and his employer's workmen's compensation insurer, plaintiffs below, from a judgment entered in the Baltimore City Court in favor of the appellee, Baltimore and Pittsburgh Motor Express Co. (Company or appellee), one of the defendants below, after the court granted appellee's motion for a directed verdict in its favor.

The principal question involved is a claim by the appellants that the trial court erred in refusing to submit to the jury the issue of appellee's responsibility as a common carrier franchised and duly certificated by the Interstate Commerce Commission (I.C.C.) for the negligence of one Selle, an unfranchised owner-operator, whose motor tractor was allegedly under lease to appellee at the time of a motor vehicle collision, in which Schmidbauer was injured.

On May 16, 1956, at about 1:40 a. m., Schmidbauer, while in the course of his employment, was operating a taxicab east on Baltimore Street, approaching its intersection with Gay Street. He entered the intersection on a green light, and a motor tractor, being operated in a northerly direction on Gay Street by Selle, came through a red light and collided with the taxicab (there is no controversy concerning the fact that Selle was negligent). The tractor was registered in Selle's name, and bore Pennsylvania license plates. Selle was a resident of that State, and had an operator's license therefrom.

Selle first began to haul freight for the appellee in June, 1955, under what he, Selle, referred to several times as a written lease,*fn1 whereby he "leased" his tractors to appellee to pull its trailers. Selle was an unfranchised owner-operator, who held no certificate from the I.C.C. to operate motor vehicles or perform transportation services in interstate commerce. The appellee was a common carrier of freight, duly franchised and certificated by the I.C.C. to operate in Maryland, Ohio and Pennsylvania. In order to render efficient and

economical service, appellee employed salaried drivers of its own, and, in addition, augmented its own equipment and personnel by acquiring the services and equipment of others, this practice being quite prevalent in the industry.

Selle testified that he owned no trailers but hauled appellee's trailers. His tractor bore appellee's decals issued by appellee, and owner-operators were instructed to "X-out" appellee's name after arrival at their destinations. He was paid once a week on the basis of the number of tons of freight hauled during the week, and the longer the trip the more per ton he received. Appellee had no ownership interest in Selle's tractor. He serviced and greased his own vehicle and paid for his repairs. Appellee paid Selle only for the tonnage he hauled, and for nothing else.

Selle stated that he entered into only the one written lease of his equipment during the entire period of his relationship with appellee, and he carried this lease with him all the time. He and appellee did not execute a trip lease for each trip made by Selle; rather, he leased his tractor to appellee at times when appellee would require it. The lease he signed was not for any specified period of time and it did not have to be renewed; rather it was good until Selle "left the company * * * they didn't have to be renewed." No period of 30 days was mentioned, and, during the time that Selle was under lease to appellee, he would have to make his tractor available to appellee at any time appellee wanted it. Selle testified that appellee would contact him when it had a load of freight, and he would be given a manifest covering the load from the point of departure to the point of destination. Appellee dispatched from its terminals at 5:30 every evening. When Selle did not have a further run scheduled he would go home with his tractors if he were in Pittsburgh, but in other places he would let them "set at the terminals."

James F. Erb, appellee's Director of Safety, stated that generally when his company used non-owned equipment, the owner-operators contacted appellee by phone. Appellee dispatched from its terminals every afternoon at 5:30. The owner-operators were given a waybill and a manifest at the terminal from which they departed, and these documents were turned

in at their destination. He said that appellee had no jurisdiction "over the drivers" after they had turned in their manifest.

August H. Plitt, former Baltimore terminal manager of appellee, testified that there was no Company rule known to him which precluded persons like Selle from using their vehicles between actual hauls, "they were more or less on their own. We had no jurisdiction over them; at least we didn't maintain any jurisdiction" over them.

From the time Selle first began to haul for appellee, he worked for it steadily, averaging four or five trips a week; he, alone, drove his tractors, and he worked for nobody else during this period. On his last haul prior to the collision he was dispatched by appellee out of Ohio or Pennsylvania on the evening of May 14, 1956, with a load of miscellaneous freight, and he arrived in Baltimore on May 15, at approximately 9:00 to 9:30 p. m. He was hauling for appellee, and proceeded to appellee's terminal where he dropped the trailer, and turned in his manifest and bills to appellee's office. At that time, he knew there would be no dispatch until the following evening, and that until then he would be unable to get another trip out of appellee's terminal. No receipts for the equipment were exchanged between Selle and appellee at that time, or at any time prior to the collision.

Since there was no one else at the terminal, Selle drove downtown in his tractor, alone, and went to a movie. From the movie, he went to get a sandwich and a couple of bottles of beer at a place where he used to go "once in awhile." He then started back to appellee's terminal where it maintained a bunk room that drivers were permitted to use for sleeping when in Baltimore.

While proceeding toward the bunk room, the collision occurred. At the time of the collision, the tractor had both the name of the appellee and its I.C.C. permit number displayed on its side, and Selle was carrying a copy of his "lease" with appellee in his cab. At 5:30 p. m., on the date of the accident, he picked up, at its ...


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