163 A. 79 | Pa. Super. Ct. | 1932
Argued September 28, 1932. This was an action by a ten year old plaintiff and his mother to recover the damages respectively sustained by them because of injuries to the minor, received while riding on the defendant's truck, due to the negligent operation of the truck by defendant's driver.
The negligence of the driver is not disputed on this appeal; although nothing appears in the evidence to show any wanton or intentional injury to the boy by him. The defense was based on the proposition, specifically averred in the affidavit of defense filed, that the driver of the truck was not the agent or employee of the defendant and that the latter, in consequence, was not liable for his negligence.
The defendant, MacFadden Newspapers Corporation, *170
is the publisher of The Philadelphia Daily News. The truck on which the boy was riding at the time of the injury had on its side the words `Philadelphia Daily News.' This might have been sufficient to bring the case within the ruling of the Supreme Court in Holzheimer v. Lit Bros.,
The agreement contained in the affidavit of defense and offered in evidence was between the defendant and one Morris Rosen. The driver of the truck was Harry Rosen, an employee of Morris Rosen. The court below was under the impression that Morris Rosen was driving the car at the time of the accident. He was not.
The agreement [printed in the reporter's statement] provided for two distinct things: (1) The defendant `rented' to Morris Rosen two trucks belonging to it, valued at $783.19, which the latter agreed to purchase by paying the agreed price in weekly instalments over a period of twenty-seven weeks. (2) Rosen, the contractor, agreed to operate the trucks, paying chaffeur's salaries, gasoline, repairs and such other supplies as might be required to keep them in first-class operating condition, over the routes and for the delivery of the required [regular?] special and extra editions of the Philadelphia Daily News, for which the defendant was *171 to pay Rosen $75 per week for the first truck and $65 per week for each additional truck.
We think the first matter covered by the agreement is unimportant here. It makes no difference for our purposes whether the trucks were leased by the defendant to Morris Rosen, or conditionally sold to him by defendant, or whether they had been procured by Rosen in some other way: Luckie v. Diamond Coal Co.,
The basic question involved in determining whether the relationship of independent contractor or that of master and servant exists is, who has control over the means of conducting and performing the work. If the owner, or person for whom the work is done, has the right to select the employees who do the work, the power to remove and discharge them, the right to direct both what work shall be done and the way and manner *172
in which it shall be done, then the relation of master and servant exists: Eckert v. Merchants Shipbuilding Corp.,
Ordinarily, draymen, truckmen, carters, etc. are regarded as independent contractors: 65 L.R.A. 468, note to Central Coal
Iron Co. v. Grider,
In the present case the defendant did not hire the driver of the truck; it did not pay him; could not discharge him nor direct him as to the manner in which he should drive the truck. The contractor bought his own oil and gas, could purchase any brand or kind he wanted; made his own repairs; could hire, and discharge his own employees, pay them what he chose and they agreed to; could direct them just how he wanted the work done, and change the directions from time to time provided they did not conflict with the result to be obtained for the defendant under the contract. The latter had no right to interfere in the performance of the contract beyond revoking it if the contractor *174 failed to do the work under it satisfactorily: Simonton v. Morton, supra.
That the contractor was to be paid by the week, at so much per truck, instead of a lump sum, did not affect the nature of the contract: Harrison v. Collins,
The case is very similar in its facts to Gall v. Detroit Journal Co.,
We are of opinion that the contract between the defendant company and Morris Rosen constituted the latter an independent contractor. The defendant's reasons for making such a contract are not important. It was unquestionably for a lawful service. It is immaterial that one of its reasons may have been to escape just such liability as is sought to be fastened on it in this action: Connor v. Penna. R. Co.,
While not considered or passed upon in the court below, there is another reason for holding that the plaintiffs are not entitled to recover in this action.
A review of the record fails to show any evidence disclosing any grant of authority from the defendant, or even from Morris Rosen, to Harry Rosen permitting him to take the minor plaintiff with him either to assist him or as a passenger. The boy testified that "He (Harry Rosen) asked me if I wanted to go with him; if I wanted to do some work for him." In the absence of authority from the employer either to employ the minor plaintiff or carry him as a passenger, he was merely a trespasser.
In a somewhat similar case Mr. Justice KEPHART said: "The servant has no right to impose upon his master's onerous liability by holding him responsible for the safe carriage of any person he may see fit to accept as a passenger. ..... If there was some risk in riding, the passenger assumed whatever risk there was, as well as that which came from his alighting and leaving the truck. ..... The master, short of wantonness, *176
did not owe him the duty of safe carriage or to see that he safely alighted. The boy's appearance on the truck was a trespass, created by the act of the driver for his own personal pleasure, comfort or convenience, and that of the boy. He continued as a trespasser and the driver's subsequent conduct in negligently starting the truck before the boy was off, was part of the same trespass": Hughes v. Murdoch Storage Transfer Co.,
We had occasion fully to consider the subject in a case very much like this one, except that there the minor plaintiff sued the distributor of the papers, instead of the publisher, because of injury resulting from the negligence of the former's driver, and we held that in the absence of some wilful and intentional act on the part of the employee, the master was not liable for injuries received by the boy while riding as a trespasser on the truck. In other words, to make the master liable to a trespasser for injuries received while riding on a truck they must have been wantonly and intentionally inflicted. See Collins v. Rosenberg,
As we said at the outset of this opinion, there is no evidence which justifies a finding of any wilful, wanton or intentional conduct on the part of Harry Rosen, the driver for Morris Rosen, which brought about the injury to the boy. His negligence merely consisted in passing another truck at a street intersection.
On both grounds, then, we hold that judgment against the defendant was not justified, and that judgment non obstante veredicto should be entered in favor of the defendant.
The assignments of error are sustained and judgment is reversed and entered in each appeal in favor of the defendant non obstante veredicto. *177