In Tyler et al. v. MacFadden Newspaper Corp., 107 Pa. Super. 166, 163 A. 79, the court held that in the absence of authority from the employer to carry the minor plaintiff as a passenger on the employer's truck the plaintiff was a trespasser.Summary of this case from Delaware H.R. Corporation v. Bonzik
September 28, 1932.
November 23, 1932.
Negligence — Truck — Minor — Trespasser on truck — Personal injuries — Independent contractor — Negligence of employee — Liability of contractee — Master and servant.
In an action of trespass against a newspaper company to recover damages for personal injuries sustained by a minor, the evidence established that the driver of a truck, while delivering the defendant's newspapers, invited the minor to ride with him and that the minor was injured because of the driver's negligent operation of the truck. There was no evidence, however, that the driver wantonly or intentionally injured the boy. The truck was owned by the defendant company but by the terms of a written contract it agreed to "rent" the truck to a third person. The latter agreed to purchase the truck by paying a definite price in weekly instalments and to operate it at his own expense for the purpose of delivering the defendant's newspapers on certain routes. For the use of the truck in making the deliveries the defendant agreed to pay the third person a stipulated weekly sum. The defendant did not retain any control over the truck or driver. The driver of the truck was employed by the third person.
Held: (1) That the contract between the defendant and the third person constituted the latter an independent contractor, (2) that the defendant was not liable for the negligence of the driver in operating the truck and (3) that the judgment entered on a verdict for the plaintiffs will be reversed.
If the person for whom work is to be done, has the right to select the employees who are to 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 in which it shall be done, then the relation of master and servant exists. But if he lets out the work to another, reserving no control over the work or workmen, beyond such general supervision as may be necessary for the purpose of ascertaining whether the contractor is carrying out his agreement, then the relation is that of independent contractor, and the contractor alone is liable for the negligence of his employees. Master and servant — Trespasser — Injuries to trespasser — Liability of master.
To make a master liable to a trespasser for injuries received by the latter while riding on the former's truck, it must appear that the injuries were wantonly or intentionally inflicted by the master's servant.
Appeal Nos. 35 and 36, October T., 1932, by defendant from judgments of C.P. No. 2, Philadelphia County, September T., 1930, No. 7350, in the case of Roland Tyler, by his mother and next friend, Burnett Tyler and Burnett Tyler, in her own right v. MacFadden Newspapers Corporation.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Reversed.
Trespass to recover damages for personal injuries. Before GORDON, JR., J.
The facts are stated in the opinion of the Superior Court and in the agreement entered into by MacFadden Newspapers Corporation and Morris Rosen, a copy of which agreement as executed is as follows:
"It is hereby agreed between MacFadden Newspapers Corporation and Morris Rosen hereinafter known as the Contractor, that with the payment of One Dollar each to the other, herein acknowledged, the said Contractor take over the following routes for the distribution of the Philadelphia Daily News in the City of Philadelphia or environs: —
Routes: — 11-12
"The MacFadden Newspapers Corporation hereby rents to the said Contractor two trucks, now known as trucks Nos. F44-C5, on agreement herein entered into by which the Contractor will purchase the said trucks on the following terms: —
"The said trucks are valued on the books of the Company, with spare tires and other equipment at Seven Hundred Eighty-three Dollars and nineteen cents ($783.19), which price shall be paid by the contractor over a period of 27 weeks, with interest at six per cent per year, payable each week on the balance standing as unpaid. When and as the said trucks are fully paid for the MacFadden Newspapers Corporation agrees to turn clear title to the same over to the Contractor.
"The Contractor herein agrees to operate the trucks, paying salaries for chauffeurs when necessary, repairs, gasoline and such other supplies as may be required to keep the trucks in first class operating condition over the routes and for the required, special or extra editions of the Philadelphia Daily News, for which he shall be paid Seventy-five Dollars per week for the first truck and Sixty-five Dollars for each additional truck he operates under this contract, the said payment to be made weekly, not later than Wednesday of the week following for each week's service.
"The MacFadden Newspapers Corporation will deduct from said payment each week the weekly insurance premium for fire, theft and collision insurance. The Corporation also shall deduct from said payment any and all shortage in payment for papers for the week previous, the agreed payment on the purchase of the truck, or trucks, the other sums owed the MacFadden Newspapers Corporation by said Contractor. The said Contractor also shall bear the expense of bonding himself and employees under his immediate jurisdiction to the number of cars operated.
"The MacFadden Newspapers Corporation further agrees to pay at the end of one year of this contract for each car operated under this contract for the entire year a bonus of fifty-two dollars.
"The Contractor may abrogate this contract on two weeks notice, forfeiting moneys paid under the purchase agreement of this contract. The contract may be terminated by the MacFadden Newspapers Corporation at any time by the payment to the Contractor of fifty per cent of the money paid under the purchase agreement in this contract, the remaining fifty per cent to be considered as just compensation for the depreciation of the property while being operated by the said Contractor.
"It is hereby agreed that if the Contractor defaults in any payments under this contract, insofar as they concern the payments on purchase of the truck, or trucks, insurance on same, or garage rent, the trucks shall be considered the property of the MacFadden Newspapers Corporation.
"In addition to all payments provided heretofore the Contractor shall receive a bonus of five per cent on all increased sales in the above mentioned districts, made by him or his employees' efforts over and above the average weekly sale in the districts, otherwise known as routes, during the four weeks of September, 1929. The bonus to be paid weekly by crediting same against the purchase price of the equipment herein mentioned, or other bills held by the MacFadden Newspapers Corporation against the Contractor, other than for papers distributed or assigned to the said Contractor.
"No truck shall be purchased or operated by the Contractor the type and make of which is not approved by the MacFadden Newspapers Corporation.
"The MacFadden Newspapers Corporation shall continue on its payroll corner boys, branch boys, etc., to the number now in its employ in the districts above outlined, all additional boys added from time to time to be paid by said Contractor.
"This contract effective 11/25/29.
"Witness: MORRIS ROSEN,
HARRY WACHTER Contractor
LEE ELLMAKER, Vice President,
MacFadden Newspaper Corporation."
Verdict for Roland Tyler in the sum of $300 and for Burnett Tyler in the sum of $55 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.
Thomas Raeburn White, and with him Wayland H. Elsbree of White, Schnader, Maris and Clapp, for appellant. Cited: Connor v. Pennsylvania Railroad Co., 24 Pa. Super. 241; McColligan v. Pennsylvania Railroad Co., 214 Pa. 229.
Lynn L. Detweiler of Detweiler and Detweiler, and with him Matthew K. Stevens, for appellee.
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, 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., 262 Pa. 150, 105 A. 73, and establish a rebuttable presumption that the truck was being used at the time on the defendant's business. But the plaintiffs did not rest satisfied with this. They offered in evidence the affidavit of defense, which contained the agreement under which the truck was in fact being operated, and if this establishes that the operator of the truck was an independent contractor, engaged in delivering the defendant's papers, there can be no recovery. The plaintiff may in his own case show that the truck was not being operated on the defendant's business: Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867, and thus effectually rebut the presumption above referred to.
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 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., 183 P. 178 (Cal.). The important matter is whether they were being operated by Morris Rosen as the agent of the defendant and on its behalf, or on his own behalf as an independent contractor, for the delivery of defendant's papers. If the latter, then the fact that the delivery was beneficial to the defendant would not charge it with liability for the negligence of those making such delivery. For example, newspapers are sent by common carriers to many suburban towns and nearby cities. Such delivery is for the benefit of the newspaper in that it is the means of putting the paper into the hands of its subscribers; but no one would think of holding that the negligence of the common carrier in the delivery of the papers was chargeable to the newspaper publisher. The result is no different, if, instead of delivering by common carrier, the delivery is made by private carrier, provided the carrier is acting on his own behalf and not as the agent or representative of the newspaper. The incidental benefit to the newspaper's business resulting from the contract of carriage and delivery is not material in determining the relation between the parties.
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 in which it shall be done, then the relation of master and servant exists: Eckert v. Merchants Shipbuilding Corp., 280 Pa. 340, 349, 124 A. 477; but if he lets out the work to another, reserving no control over the work or workmen, beyond such general supervision as may be necessary for the purpose of ascertaining whether the contractor is carrying out his agreement (Miller v. Merritt, 211 Pa. 127, 60 A. 508; Simonton v. Morton, 275 Pa. 562, 567, 119 A. 732,), then the relation is not that of master and servant, but of independent contract, and the contractor alone is liable for the negligence of his employees: Smith v. State Workmen's Ins. Fund, 262 Pa. 286, 105 A. 90; Kelley v. D.L. W. Railroad Co., 270 Pa. 426, 113 A. 419; Campagna v. Ziskind, 287 Pa. 403, 135 A. 124; McGrath v. Penna. Sugar Co., 282 Pa. 265, 127 A. 780. Or as held in Smith v. Simmons, 103 Pa. 32, where one who contracts to perform a lawful service for another, is independent of his employer in all that pertains to the execution of the work, and is subordinate only in effecting a result in accordance with the employer's design, he is an independent contractor. This is so whenever one renders service in the course of an occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished: Harrison v. Collins, 86 Pa. 153; Painter v. The Mayor of Pittsburgh, 46 Pa. 213, 221. In the language of Mr. Justice SCHAFFER, in the very recent case of Eckert v. Merchants Shipbuilding Corp., supra, "Where the status of one performing an undertaking may not be precisely that of an independent contractor, yet where he hires, pays, discharges and controls the workmen, he will be liable for their torts" (p. 348).
Ordinarily, draymen, truckmen, carters, etc. are regarded as independent contractors: 65 L.R.A. 468, note to Central Coal Iron Co. v. Grider, 115 Ky. 745, 74 S.W. 1058. Illustrative cases are found in Foster v. Wadsworth-Howland Co., 168 Ill. 514, 48 N.E. 163; Jahn v. McKnight, 78 S.W. 862 (Ky.); Winters v. American Radiator Co., 128 Minn. 508, 151 N.W. 277; Burns v. Michigan Paint Co., 152 Mich. 613, 116 N.W. 182; Svoboda v. Western Fuel Co., 193 N.W. 406 (Iowa). See also 39 C.J. 1319. "The direction to one engaged in `general hauling' to haul property to or from a specified place does not change the nature of, or convert a special employment into the general relation of master and servant; a man does not become answerable for the negligence of a taxicab driver, or of a carrier, merely by specifying where he wishes to go or to have his property delivered": Wright v. A. S. Wilson Co., 83 Pa. Super. 487, 489 (LINN, J.). Such a contract, just as in the present case, is concerned almost wholly with the doing of work. No materials are to be furnished, as in the case of erecting a building, or constructing public work. See Miller v. Merritt, supra. Hence the means and manner of performing the contract is largely concerned with the workmen or subordinates employed to do it, and where the contractor is not subject to interference from the contractee in the hiring, paying, directing and discharging of his subordinates he operates as an independent contractor and not as a servant.
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 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, 86 Pa. 153, 158; Karl v. Juniata County, 206 Pa. 633, 56 A. 78; nor that he worked with, or even superintended, some employees of the defendant: Harrison v. Collins, supra, p. 159).
The case is very similar in its facts to Gall v. Detroit Journal Co., 158 N.W. 36 (Mich.) where a contract very much like the one in suit was made by the Detroit Journal with one Rebtoy for the distribution and delivery of its papers to its subscribers. The Supreme Court of Michigan held that Rebtoy was an independent contractor and that the Journal Company was not liable for the negligence of Rebtoy's employees, saying inter alia: "Rebtoy did have a contract for a specific piece of work; that is, for the delivery of the papers. And it was none the less specific because the places to which the deliveries were to be made and the persons to whom the papers were to be delivered might change from day to day. The right, on the part of the company, to designate the persons and places was but a right to designate the result to be obtained, and did not give the company any control over the method for obtaining this result. Rebtoy was paid by the week, but so was the contractor in Burns v. Michigan Paint Co., 152 Mich. 613, 116 N.W. 182. ..... No reason is seen why a man may not agree, as an independent contractor, to deliver all, or part, of the papers printed by a publisher, of the groceries sold by a groceryman, or of the goods sold by a merchant, if the method and means for doing so are left entirely to him without any right of control by the employer." See also, Wood v. Cobb, 13 Allen (Mass.) 58; Kueckel v. Ryder, 66 N.Y. Supp. 522, affirmed 62 N.E. 1096, on the opinion of the court below.
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., 24 Pa. Super. 241, 245. That case and McColligan v. Penna. R. Co., 214 Pa. 229, 63 A. 792, which also dealt with the employment of hansom cab drivers at the Broad Street Station, Philadelphia, are along the same lines as this one. In fact, the control over and directions given the drivers in those cases (See 24 Pa. Super. 244, 245; 214 Pa. 232, 233), were stronger than the contractor was subject to in this case.
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, 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., 269 Pa. 222.
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, 106 Pa. Super. 269, 161 A. 580.
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.