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Complaint; from Fulton Civil Court-- Judge Lowe. March 29, 1951.
1. Since the evidence authorized the trial judge who heard the case without the intervention of a jury to find that by an express written contract the two transportation firms herein involved entered into an agreement covering joint leasing operations under their respective I.C.C. permits, which agreement contemplated the leasing of equipment from third parties and a pro rata division of profits thereunder, the conclusions are authorized by the evidence that the execution of the contract and the operations of the parties under it constituted a joint enterprise, and that the act of one of the parties in leasing the equipment of the plaintiff in the name of the other was within its scope.
2. The evidence here is not sufficient to demand a finding that the plaintiff entered into the lease agreement as a subterfuge for the purpose of engaging as a motor common carrier in interstate commerce.
3. The provision of law that where a bailor sends his own agent with the thing bailed the hirer shall be responsible only for the consequences of his own directions does not apply where the hirer, by express contract, accepts the owner's agent as his employee for the duration of the contract.
Elbert T. Fuller brought suit against Ralph M. Bowman, doing business as the Bowman Transportation Company, in the Civil Court of Fulton County, attaching to the petition a lease agreement between the parties under which the defendant leased from the plaintiff a tractor-trailer combination to be used in the transportation of freight, the plaintiff lessor agreeing to furnish drivers and helpers for the operation of the equipment, which employees "shall be deemed to be in the employ of the party of the first part [defendant] for the duration of this lease," and to furnish all tires, gas, oil, grease, license tags and plates, upkeep and repairs and to bear the expense thereof. The defendant lessee was to have direct supervision over all drivers and helpers so furnished, with authority to discharge at any time for justifiable cause, to pay the lessor "for the use of said truck and/or trailer for transportation of personal property with said equipment Rome, Georgia to Opa Locka, Florida, and return . . . Said equipment to be returned to the party of the second part at the expiration of this agreement in good condition, the usual wear and tear of said equipment excepted." The petition alleged that the defendant had breached the contract by failing to return the trailer and sued for its value plus hire. The lease was signed, "Bowman Transportation Company, R. L. Moore, Party of the First Part."
The defendant answered denying the lease was ever signed by any employee of his or any one authorized to enter into the same on his behalf, and that the signature thereon was not the signature of R. L. Moore or of any person authorized to act for the defendant, and alleging that the equipment involved in the purported lease did not operate over the route defendant was lawfully authorized to follow under his Interstate Commerce Commission franchise. A special plea of non est factum was also filed. The plaintiff then amended, alleging that E. L. Moore was the defendant's agent authorized to enter into contracts in his behalf; that the name, "R. L. Moore" was signed by S. J. Morris Motor Express Inc., that for a period of months immediately prior to, and on the day the lease was signed, the defendant authorized and directed S. J. Morris Motor Express Inc. to enter into contracts in his behalf and to sign the defendant's name or that of his authorized agents thereto; than over this period of time S. J. Morris Motor Express Inc. did sign defendant's name or that of his agent to such contracts, which contracts were uniformly authorized and subsequently ratified by the defendant; that the name "R. L. Moore" was signed by S. J. Morris Motor Express Inc. with the knowledge, authority and consent of the defendant, and acting as the defendant's agent within the scope of its authority; that the act of S. J. Morris Express Inc. in so doing was the act of the defendant, and that, pursuant to the contract, the defendant accepted delivery of the property and thereby ratified the act of its agent, S. J. Morris Motor Express Inc. in signing the contract in its behalf. The defendant thereafter amended his answer as follows: "Even had there been a valid contract . . . same would be illegal and contrary to law and actually' plaintiff was running his own equipment with his own employees in the handling of interstate commerce when he did not have any right in law to do so, and therefore the plaintiff cannot recover upon said purported contract, even if it had been executed by or for defendant, which it was not."
Although the evidence is in sharp conflict as to some of the issues, when construed in its light most favorable to support the verdict, it authorized the judge to find facts substantially as follows: That on May 19, 1949, the defendant, his traffic manager W. A. Hefner, S. J. Morris, and his traffic manager R. J. Hager, entered into an agreement covering joint leasing operations between their respective lines (the companies having been granted I. C. C. permits covering different routes,) for the division of profits in stated ratios under the following circumstances: (1) joint line operations, (2) single line operations; (3) "traffic destined to points in Florida moving under joint leases (equipment leased from others than S. J. Morris Motor Express Inc. or Bowman Transportation Company) new revenue will be divided equally between our respective lines." That in pursuance of this agreement at least 49 shipments involving 195 freight consignments were made under its terms; that the defendant received revenue pursuant to the contract, divisions of profits being made periodically; that it was understood that all the Bowman shipments had to originate in Rome because of the I. C. C. permit and for that reason R. L. Moore, Bowman's agent in Rome, was the man whose signature must appear on all leases; that Moore's name did appear on the leases but that he actually only signed two of them, the others being signed by Morris, Hager or other agents in the Morris company office; that copies of the leases were then mailed to Bowman in Atalla, Alabama; that lease agreements were so made and executed from May through October during which time there was never any complaint from Bowman; that to facilitate the transaction Bowman Transportation had printed up and furnished to S. J. Morris Motor Express 400 sets of freight bills showing consignments for delivery by Bowman Transportation Co., 195 of which had been used by S. J. Morris Motor Express in making up shipments for carriage under the facilities and over the routes of Bowman Transportation Co.; that on October 26, 1949, Morris called the plaintiff's office by telephone to find out whether he could lease a truck-trailer combination for a one-way trip to Miami, Florida; that one of the plaintiff's agents sent the equipment together with its driver, Don Darnell, to Morris' office with authority to sign the lease; that Darnell signed the lease, copy of which was attached to the petition, for the plaintiff, and one of Morris' agents signed the name "Bowman Transportation Company, R. L. Moore" for the defendant in accordance with the usual practice; that the truck was then loaded with ammunition under a U. S. Government freight waybill which contained the following: "Name of Initial Transportation Company, S. J. Morris Motor Express Inc. and Bowman Transportation Co."; that the driver was supposed to deliver the cargo at Opa Locka, Florida and then purchase a load of bananas for the plaintiff's own use and return. The plaintiff had no I. C. C. permit, it being his regular practice to lease his trucks on one-way trips to Florida and to return with produce for his own use. Although the lease was made out for a round trip, it was the intention of both Fuller and Morris that it be for a one-way trip only. The driver had tire trouble
south of Valdosta, and eventually left Lake Park with a flat on the ground; then another tire went flat and the driver pulled into a service station. The tires were smoking. The driver, after squirting fire extinguisher on the tires, went to get repairs, and while he was gone the entire trailer and contents caught fire and burned to the ground.
The defendant's traffic manager, Hefner, testified that he regularly received copies of leases from S. J. Morris Transportation Company a day or so after they were mailed out; that they were all signed, "R. L. Moore" and, not being a handwriting expert he assumed Moore had signed them at Rome, the legal point of origin; that he did not notice that one of the leases simply bore a typewritten signature of R. L. Moore; that he did leave the Bowman Transportation Company freight bills with Morris, and did pick up the unused portion of them after learning of the fire; that he had had no previous dealings with the plaintiff. The plaintiff testified that Hefner came to his office shortly after the fire; that plaintiff asked him "whether Morris had a right to lease us," to which Hefner replied, "He did have, but he doesn't have any more because I picked up all of my [bills of lading] this morning."
The truck driver who was a regular employee of the plaintiff, reported the accident directly to him, and received wages from him. The plaintiff paid all the expenses of operation in accordance with the lease contract.
The court entered judgment in favor of the plaintiff, whereupon the defendant filed a motion for a new trial. The overruling of this motion as later amended is assigned as error.
(After stating the foregoing facts.) 1. "Broadly, there is a joint enterprise or adventure when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership." Atlanta Metallic Casket Co. v. Southeastern Wholesale Furniture Co., 82 Ga. App. 353, 358 (61 S. E. 2d, 196). It is generally held that the acts of one party during the pendency and within the scope of the joint undertaking or enterprise are binding upon the other joint adventurer. See Goodsitt v. Richter, 216 Wis. 351 (257 N. W. 23, 95 A.L.R. 1238); Hartman v. Day, 249 App. Div. 786 (292 N. Y. Supp. 226); Federal Underwriters Exchange v. Coker (Tex. Civ. App.) 116 S. W. 2d, 922; State ex rel. Crane Co. v. Stokke, 65 S. D. 547 (272 N. W. 811, 110 A.L.R. 761). The question of whether or not the facts proved show a joint adventure between the parties as well as whether or not the act done is within the scope of the enterprise so as to bind the other party thereto is generally a jury question. Murray v. Williams, 114 Fed. 2d, 282; Adams v. Harrison, 34 Cal. App. 288 (93 Pac. 2d, 237); Miller v. Boma Investment Co., 112 Colo. 7 (144 Pac. 2d, 988); Bennett v. Sinclair Ry. Co., 144 Ohio 139 (57 N. E. 2d, 776); Cockburn v. Irvin (Tex. Civ. App.) 88 S. W. 2d, 747. Where a joint adventure is established, the general laws of partnership and agency apply. Commercial Lumber Co. v. Nelson, 181 Okla. 122 (72 Pac. 2d, 829); Soulek v. City of Omaha, 140 Neb. 151 (299 N. W. 368). As stated in 48 C. J. S., Joint Adventures, 14: "Members of a joint adventure in general are liable on contracts with third persons which have been duly entered into on behalf and for the purpose of the joint adventure."
Under the evidence here, the court was authorized to find that the defendant had entered into a joint enterprise with Morris Trucking Company under an agreement to share leases and franchise rights and to pool profits, that the defendant resided in Alabama, but had turned over forms to Morris in Atlanta to be used by him in expediting Georgia shipments; that 49 similar leases made by Morris had been ratified by the defendant; that Morris or his employees regularly signed the name "R. L. Moore" to these leases and the defendant regularly received copies thereof and never protested, and that the defendant's agent Hefner admitted Morris had had authority to sign his leases until a date subsequent to that of the accident in question. The court was fully authorized to find that she agent of S. J. Morris Company, in arranging with the plaintiff to lease his truck to Bowman Transportation Company, was acting in pursuance of and within the scope of the joint enterprise agreement, and that the profits expected from the lease, which was for the purpose of transporting government goods consigned to Bowman Transportation Company and S. J. Morris Motor Express Inc. jointly for delivery were to have been divided between these parties. This being so, the court was authorized to find that the defendant was bound by the act of his co-adventurer in placing his signature, by that of his Rome agent, on the lease contract.
2. It is strongly urged by the defendant in the special ground of the amended motion for a new trial that even if the question of agency should be determined adversely to him the contract itself is void and unenforceable, for the reason that the lease agreement as actually intended to be enforced represents an attempt on the part of the plaintiff to engage as a common carrier in interstate commerce without having first obtained a certificate of public convenience and necessity issued by the Interstate Commerce Commission (49 USCA 306 (a)); that it is therefore a mere subterfuge which "directly tends in a marked degree to bring about results that the law seeks to prevent [and] cannot be made the ground of a successful suit" (Orkin Exterminating Co. of South Ga. v. Dewberry, 204 Ga. 794 (51 S. E. 2d, 669), and that for this reason it is void as against public policy (Code, 20-501); Robinson v. Reynolds, 194 Ga. 324 (1) (21 S .E. 2d, 214); Brown v. Glass, 46 Ga. App. 323 (2) (167 S. E. 722); Bugg v. Towner, 41 Ga. 316. We agree with the defendant that if the purpose of the lease were to circumvent the law regulating interstate commerce no rights would accrue to either party thereunder, the purpose of the transaction being unlawful. It does not appear, however, that such was the case. The plaintiff was dealing with S. J. Morris Express Inc. and Bowman Transportation Company, both holders of I. C. C. permits. He regularly leased his trucks to common carriers for trips to Florida in order that he could have them available in that State to haul his own produce back for his own purposes. So far as the record shows, he never leased them, nor did he do so in this case, to shippers who were not the possessors of I. C. C. permits. The cases cited by the defendant in this connection (U. S. v. La Tuff Transfer Service, Inc., 95 Fed. Supp. 375; I. C. C. v. F. & F. Truck Leasing Co. et al., 78 Fed Supp. 13; 123 Fed. 2d 210) deal with situations where injunctions or criminal proceedings were instituted against defendants who, under the guise of leases similar to the one here, attempted to carry on interstate commerce transactions, and who, like the defendant here, paid all expenses and repairs of transportation and used as drivers persons regularly employed by them, in one-way leases. The distinction lies in the fact that in those cases the lessee was not a common carrier in his own right, but was an owner-shipper interested in obtaining transportation for his own goods. Thus, the entire transaction was for the mere purpose of obtaining transportation through facilities not licensed to supply such service. In U. S. v. Steffke, 36 Fed. Supp. 257, it is true that the lessee was a licensed motor carrier, but the purpose of the purported lease agreements was not as a bona fide transaction placing the leased equipment at the service of the lessee, but was designed as a cover-up under which the lessor could preserve its own business, and it continued to solicit and accept cargoes of third persons, make rates and handle transportation problems. In these cases evidence that the driver was an employee of the lessor and that the lessor paid the actual expenses of the leased equipment were considered as a circumstance tending to prove, in relation to other evidence regarding the lesser's activities, that he was in fact engaging as a motor carrier for hire. Such is not the case here. Morris, not the plaintiff, procured the consignment of government goods, and Morris, not the plaintiff, was to receive payment for their delivery. In so doing he was acting not for the plaintiff but for himself and the defendant Bowman Transportation Company in their perfectly legal joint leasing operation as licensed motor carriers. If the cargo actually transported was a commodity not covered by their I. C. C. permits, and if the shipment actually originated at a point other than Rome, Georgia, as required by the permit, this was not the plaintiff's concern, he having no interest in the transportation of the lessee's cargo. In consequence, it cannot be said that the plaintiff entered into the lease for any unlawful purpose. See also I. C. C. v. Isner, 92 Fed. Supp. 582, 588, wherein the court held as follows: "Of course, where the lease of a motor vehicle equipment is made in good faith and performance of the conditions of the lease is honestly and scrupulously carried out, such lessor and lessee relationship might be found regular and
proper and not subject to regulations under the statute." See also Motor Haulage Co. v. U. S., 70 Fed. Supp. 17, wherein it is pointed out that in appeals from rulings of the commission involving this particular statute the question is whether or not the commission was right in arriving at its decision, and that to decide this question the Federal courts need not analyze the legal obligations of the parties to the lease in determining whether it comes within the purview of the statute. It thus appears that the decisions of the Federal court cases cited were not based on the contractual relationships and legal obligations of the parties in a common law action of the type now before us.
3. Since the defendant is bound by the contract, he is bound by the provision thereof to the effect that the driver is to be deemed to be in his employ for the duration of the lease. Whether or not the defendant ever assumed any control or supervision of the driver of the vehicle on the trip south, he acquired the right to do so and accepted the status of an employer. Because of this, any negligence of the driver in allowing the vehicle to burn would not change the situation, as such negligence under the circumstances would be chargeable to the defendant rather than to the plaintiff. The provisions of Code 12-203 to the effect that if the bailor sends his own agent with the thing bailed, then the hirer shall be responsible only for the consequences of his own directions, do not apply in a situation where the hirer expressly accepts the employee of the owner as his own employee for the duration of the bailment.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
John L. Westmoreland, John L. Westmoreland, Jr., contra.
Moise, Post & Gardner, for plaintiff in error.
Saturday May 23 05:15 EDT

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