Cushman Motor Delivery Co. v. Bernick

Were it not for the pronouncement of the Ohio rule relating to trucking companies, announced in Leonard v. Kreider, 128 Ohio St. 267, 190 N.E. 634, I would be unable to concur in the majority opinion in this case.

While there is some doubt in my mind as to whether the Supreme Court in the Leonard case intended to do anything other than to construe the statute, the court did make the pronouncement that to make the railroad rule applicable to trucking companies required legislative action. There are many respectable authorities tending to show that the rule as to non-delegation of duties applies to all common carriers.

In the case of Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661, at 591 of the opinion, the court states: "Liability to third parties and the public was expressly recognized; but whether it was or not is, of course, immaterial, for the company was a common carrier and could not, by delegating its duties, escape its liability as such." The court quotes in support of that proposition Rhone v. Try Me Cab Co.,65 F.2d 834. In the opinion, Judge Matthias cites several cases, and while the question in these cases is one of workmen's compensation, the observation pronounced in those cases is that the company is liable to the public for the negligence of the driver, notwithstanding inter sese the relation between the driver and the owner be that of bailor and bailee or lessor and lessee.

In mentioning that the matter is of legislative policy, the court seems to overlook the fact that the question of respondeatsuperior is a pronouncement of law by the court and not legislative. The matter before us is simply one phase of the construction of respondeat superior, and why this should be singled out as a matter of legislative policy, I do not understand.

I shall not go into a lengthy discussion of my views on this subject, for the reason that I believe the pronouncement of the Supreme Court of Ohio in the Leonard case is controlling under the rule of judicial subordination.