Gilbert v. Rogers

California Court of Appeal May 11, 1953 No. Civ. 8213Published

Before: Van Dyke

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Holding. A radial highway common carrier is not liable for the negligence of an independent contractor subhauler because the duties of such carriers are not nondelegable under the rule established in Eli v. Murphy.

Issues

Whether a radial highway common carrier is liable for the negligence of an independent contractor subhauler.
Whether the duties of radial highway common carriers and highway contract carriers are nondelegable.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we are thereby bound to hold that the respondent carrier, a radial highway common carrier, was not, in the course of its business performing activities giving rise to nondelegable duties”

“having thus validly contracted it cannot be held liable for the torts of its independent contractor.”

VAN DYKE, P. J.

On August 23, 1950, at 1:30 a. m., Ernest A. Boyd, as the employee of Richard V. Rogers, was driving a truck, with trailer attached thereto, northerly on Highway 99. Negligently he drove his rig across the center line into the opposing traffic lane, thereby compelling plaintiff’s truck and trailer, going southerly, to swerve in such a way as to overturn and spill its load. At that time defendant and respondent, Constructors Transport Company, a corporation, was a licensed

radial highway common carrier

as defined by section 3516 of the Public Utilities Code. It was also a licensed

highway contract carrier

as defined by section 3517 of said code. Up to midnight of August 22d, Rogers, the negligence of whose driver caused the accident, was a licensed

highway common carrier,

but because he had violated certain provisions of law applying to such carriers his license had been revoked effective at midnight of said day. When the accident occurred Rogers was without a license. Prior to the time of the accident, respondent Constructors Transport Company had contracted with an agency of the United States Government to haul a quantity of cargo for said agency and on August 22d had contracted with Rogers to subhaul a portion thereof. Rogers contracted to furnish for the work his own truck and driver and to haul at a rate fixed and allowed by the Public Utilities Commission. His rig finished its run and Rogers was paid for the haul. Plaintiff-appellant sued for his damages, joining Rogers and respondent Constructors Transport Company. The trial court in effect found that the relationship between Constructors Transport Company and Rogers, according to their contract, was that of employer and independent contractor, and that the contract between them was conformable to the authority and permits issued the carriers by the Public Utilities Commission. The trial court fixed the damages at $10,520.90, and gave judgment in favor of plaintiff and against Boyd and Rogers; but held that plaintiff was entitled to nothing as against Constructors Transport Company. Plaintiff has appealed from that part of the judgment which denied him recovery against Constructors Transport Company.

This appeal presents primarily the question of whether or not a

radial highway common carrier

which has sublet a

Gilbert v. Rogers

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VAN DYKE, P. J.

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