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11/23/94 WILLIAM SHOEMAKER v. ELMHURST-CHICAGO

November 23, 1994

WILLIAM SHOEMAKER, GUARDIAN OF THE ESTATE OF KATHERINE SHOEMAKER, AND NANCY SHOEMAKER, GUARDIAN OF THE PERSON OF KATHERINE SHOEMAKER, PLAINTIFFS-APPELLEES,
v.
ELMHURST-CHICAGO STONE COMPANY, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Frank P. Orlando, Judge Presiding.

As Modified On Denial of Rehearing July 12, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Justice Cerda delivered the opinion of the court: Tully, P.j., and Rizzi, J., concur.

The opinion of the court was delivered by: Cerda

MODIFIED ON DENIAL OF REHEARING

JUSTICE CERDA delivered the opinion of the court:

Defendant, Elmhurst-Chicago Stone Company, Inc. (Elmhurst), appeals from the judgment entered against it by the circuit court of Cook County in favor of plaintiffs, William Shoemaker, guardian of the estate of Katherine Shoemaker, and Nancy Shoemaker, guardian of the estate of the person of Katherine Shoemaker, in their action arising out of personal injuries sustained by Katherine in a vehicle collision. Among Elmhurst's arguments on appeal are that: (1) it was not liable as a matter of law for the actions of the driver of the truck that collided with the automobile in which plaintiffs' ward was riding because the truck driver was not Elmhurst's agent; and (2) the evidence did not establish that the truck driver was Elmhurst's agent. We reverse.

The issue in this case is whether a principal-agency relationship is established between a truck owner and a shipper when the truck owner enters into a lease with an Illinois Commerce Commission (ICC) certified carrier who directs the truck owner to the shipper to pick up and deliver goods to locations designated by the shipper.

Plaintiffs' second amended complaint alleged the negligence of Elmhurst and the other defendants, Greg W. Anderson and Lawrence Trucking, Inc. The following allegations are relevant to the appeal. On September 18, 1985, plaintiffs' ward was a passenger in a car that was being driven eastbound on Route 68 in Cook County, Illinois. The car was turning northbound onto Hicks Road when it was struck by a truck driven by Anderson.

Plaintiffs settled with Anderson and Lawrence Trucking.

The following is a summary of the trial testimony relevant to the issue of whether Anderson was Elmhurst's agent.

Greg Anderson testified that he owned the truck involved in the accident but it was leased then to Lawrence Trucking. At the time of the accident, Anderson's truck was empty. In order for him to conduct the business of hauling for hire, he had to enter into a written lease agreement as required by the ICC. He could not legally haul for hire without an ICC permit, which Lawrence Trucking possessed. He did not have an ICC permit of his own. Anderson's truck carried the identification of Lawrence Trucking and its ICC numbers. There was no identification on the truck showing that he owned it. The only reason he had Lawrence Trucking's sign on his truck was to comply with ICC requirements. There were times when the truck also had the ICC numbers of another company. He also had a lease arrangement with at least one other trucking company. The terms of the lease agreement provided that Lawrence Trucking would have exclusive control for the leased truck while it was being used by or for Lawrence Trucking. In 1985, the majority of his work was done for Elmhurst at the direction of Lawrence Trucking.

Anderson further testified to the following:

Lawrence Trucking would obtain the hauling jobs and would receive five percent of the gross compensation. Anderson paid his expenses or driving the truck such as fuel and repairs. There were no taxes or other deductions withheld from his 95 percent payment. He did not receive employment benefits from Lawrence Trucking. If for some reason Elmhurst did not pay Lawrence Trucking, he would still expect to be paid by Lawrence Trucking. He would go to the jobs as Lawrence directed him but he determined whether he would accept a load. Anderson had no agreement with Elmhurst. Elmhurst never set any rules about how his truck was to be driven. He determined what route he would take. Elmhurst could not have terminated his arrangement with Lawrence Trucking, but Lawrence Trucking could have severed his relationship with Elmhurst.

James C. Lawrence testified to the following. He was the owner of Lawrence Trucking. He entered into equipment leases with Anderson and others so that he could service customers when his own truck drivers were busy. Although he leased tractors and trailers, he did not have physical possession of the equipment. Anderson was in charge of maintenance for his tractor and trailer. Customers could not legally pay Anderson directly. Anderson would receive a Lawrence Trucking check. Anderson was never his ...


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