
    Duncan, Appellee, v. Evans, d. b. a. Evans Truck Lines, Appellant. Healy, Admr., Appellee, v. Universal Carloading & Distributing Co., Appellant.
    (Nos. 26492 and 26642
    Decided November 30, 1938.)
    
      Mr. George S. Cheney, for Earle C. Duncan, appellee.
    
      Mr. William A. Finn and Mr. S. W. Bowman, for Charles G. Evans, appellant.
    
      Messrs. Harrison & Marshman, for C. Walter Healy, administrator, appellee.
    
      Messrs. McConnell, Blackmore & Cory, for Universal Carloading & Distributing Company, appellant.
   By the Court.

In each, case the defendant claims that at the time of the collision the trucking equipment was being operated by an independent contractor to whom had been delegated the duty of transporting the freight. Therefore the single question now requiring the consideration of this court is whether a common carrier by motor truck may relieve itself of tort liability by delegating its duties to an independent contractor.

The defendants rely upon the decision of this court in the case of Leonard v. Kreider, 128 Ohio St., 267, 190 N. E., 634, in'which it was held that “no rule of law as to independent contractors is abrogated by Section 614-99, (General Code, relating to motor transportation companies.” However, subsequently to the collision in the Kreider case the Legislature amended many existing statutes and added Sections 614-103 to 614-128, G-eneral Code, inclusive. The powers of the Public Utilities Commission have been extended to include the supervision and regulation of “private motor carriers” and “motor carrier transportation agents.” Before operating, the former must obtain a permit from the commission, and the latter must secure a license therefrom. Both must furnish bonds for the protection of the public, as do motor transportation companies. Apparently the Legislature intended to protect the public against loss from negligence on the part of anyone using the highway in the business of transportation by motor truck. Therefore the trial courts were correct in charging the juries that these defendants could not escape liability by delegating their duti.es to independent contractors.

In the Duncan case the defendant complains that the trial court charged the jury that a violation of a rule of the Public Utilities Commission would constitute negligence per se. However, an examination of the file discloses that this question was not urged by the defendant in his brief in the Court of Appeals.

It is the opinion of this court that the judgments' in these cases must be affirmed.

Judgments affirmed.

Weygandt, C. J., Day, Zimmerman and Williams, JJ., concur.

Matthias, Myers and Gorman, JJ.,

concur in the affirmance of the judgment in cause No. 26492 but dissent in cause No. 26642.

Gorman, J.,

dissenting. I regret that I cannot concur in the affirmance in cause No. 26642.

The facts in the two cases are essentially different. ■In cause No. 26492, Evans had a certificate of public convenience and necessity from the Public Utilities Commission to operate a motor transportation company in interstate commerce. He attempted to delegate the duty of carrying goods' to George Moore who did not have a certificate. While one of Moore’s agents was driving a truck carrying goods consigned to him by Evans, such truck collided with an automobile which in turn collided with the automobile in which Duncan was riding.

In cause No. 26642, the Universal Carloading & Distributing Company entered into ah agreement whereby Mid-West Haulers, Inc., agreed to carry certain goods for it under a contract. The Universal Carloading & Distributing Company did not have a certificate of necessity and convenience but Mid-West Haulers', Inc., did have such a certificate.

However, Mid-West Haulers, Inc., had complied with every requirement of the law and all the regulations of the Public Utilities Commission necessary to transport lawfully the goods and merchandise. Mid-West Haulers, Inc., carried insurance for the benefit of the traveling public. The Universal Carloading & Distributing Company could not have been required to do more. While the Universal Carloading & Distributing. Company would be liable upon its contract to any shipper if goods were damaged while being transported by Mid-West Haulers, Inc., there is no reason to extend this liability to include claims of third persons arising in tort, since Mid-West Haulers, Inc., had complied with every provision of the law.

In cause No. 26492, Evans had a certificate to engage in motor transportation business restricted to interstate commerce. He attempted to delegate the duty of carriage of goods to Moore who did not have such a certificate. Moore must therefore be construed to be acting as the agent of Evans, and that construction is in the interest of the traveling public.

He who permits another to act for him, when the other does not comply with all the provisions' of the law, does so at his peril. See Pound, The Spirit of the Common Law, 201 and 202, and annotations in 21 A. L. R., 1234.

For the reasons stated I concur in the judgment of affirmance in cause No. 26492, but feel that the judgment in cause No. 26642 should be reversed, and final judgment entered for appellant.

Matthias and Myers, JJ., concur in the foregoing dissenting opinion.  