Admr., v. Berg, 359 Pa. 376, 378, 379, 59 A.2d 80, 81; Pennsylvania Smelting Refining Co. v. Duffin, 363 Pa. 564, 567, 70 A.2d 270, 271; Matlack v. Chalfant, 69 Pa. Super. 49; Wright v. A. S. Wilson Co., 83 Pa. Super. 487; Festi v. Proctor Schwartz, 107 Pa. Super. 349, 359, 163 A. 354, 357; Healey v. Carey, Baxter Kennedy, Inc., 144 Pa. Super. 500, 504, 19 A.2d 852, 854; Standard Oil Co. v. Anderson, 212 U.S. 215; George A. Fuller Co. v. McCloskey, 228 U.S. 194; Funk v. Hawthorne, 138 F.2d 686, (C.C.A. 3); Restatement, Agency, ยง 227, comment b. 5. Facts which indicate that the servant remains the employe of his original master are, among others, that the latter has the right to select the employe to be loaned and to discharge him at any time and send another in his place, that the lent servant has the skill of a technician or specialist which the performance of the work requires, that the hiring is at a rate by the day or hour, and that the employment is for no definite period: Bojarski v. M. F. Howlett, Inc., 291 Pa. 485, 489, 140 A. 544, 545; Dougherty v. Proctor Schwartz, 317 Pa. 363, 364, 176 A. 439, 440; Walters v. Kaufmann Department Stores, Inc., 334 Pa. 233, 236, 5 A.2d 559, 560; Pennsylvania Smelting Refining Co. v. Duffin, 363 Pa. 564, 568, 70 A.2d 270, 271; Festi v. Proctor Schwartz, 107 Pa. Super. 349, 357, 163 A. 354, 356; Healey v. Carey, Baxter Kennedy, Inc., 144 Pa. Super. 500, 504, 19 A.2d 852, 854, 855; Funk v. Hawthorne, 138 F.2d 686, 688 (C.C.A. 3); Restatement, Agency, ยง 227, comment c. 6. The mere fact that the person to whom a machine and its operator are supplied points out to the operator from time to time the work to be done and the place where it is to be performed does not in any way militate against the continuance of the relation of employe and employer between the operator and his original master: Scheer v. Melville, 279 Pa. 401, 404, 123 A. 853, 854; Thatcher v. Pierce, 281 Pa. 16, 20, 125 A. 302, 303; Funston v. Ingenito, 282 Pa. 124, 127 A. 470; Bojarski v. M. F. Howlett, Inc., 291 Pa.
See, Seavey, Speculations as to "Respondeat Superior," Harvard Legal Essays 433. Cayll v. Waukesha G. E. Co. 172 Wis. 554, 179 N.W. 771; Spodick v. Nash Motors Co. 203 Wis. 211, 232 N.W. 870; Western W. I. Bureau v. Industrial Comm. 212 Wis. 641, 250 N.W. 834; Roe v. Winston, 86 Minn. 77, 90 N.W. 122; Saint Paul-Mercury Ind. Co. v. St. Joseph's Hospital, 212 Minn. 558, 4 N.W.2d 637; see, Chapman v. Peoples Ice Co. 125 Minn. 168, 172, 145 N.W. 1073, 1075; Errickson v. F. W. Schwiers, Jr., Co. 108 N.J.L. 481, 158 A. 482; Gaston v. Sharpe, 179 Tenn. 609, 168 S.W.2d 784; Mansfield v. Andrew Murphy Son, 139 Neb. 793, 298 N.W. 749; McFarland v. Dixie M. E. Co. 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516; Bojarski v. M. F. Howlett, Inc. 291 Pa. 485, 140 A. 544; Rourke v. White Moss Colliery Co. [1877] 2 C. P. D. 205; Donovan v. Laing, Wharton, and Down Const. Syndicate, Ltd. [1893] 1 Q. B. 629; Bain v. Central Vermont Ry. Co. [1921] 2 A. C. 412; cf. Mersey Docks and Harbour Board v. Coggins Griffith, Ltd. [1947] A. C. 1. One danger in using control as a test lies in failing to define sufficiently the scope and the meaning of the term.
The evidence being clear and undisputed, the question of whether the plaintiff was or was not an independent contractor was one of law for the court: Campagna v. Ziskind, 287 Pa. 403; Elliott v. Wanamaker, 155 Pa. 67; Williams v. Cook, 289 Pa. 207; Machen v. Wheel Co., 294 Pa. 69; March v. Traction Co., 285 Pa. 413. Philip Mattes, of Kaufman Mattes, with him A. G. Rutherford, for appellee. โ There was evidence from which the jury might infer that plaintiff was an independent contractor: Uhler v. Jones, 78 Pa. Super. 313; Guilinger v. R. R., 304 Pa. 140; Grauf v. Reing, 95 Pa. Super. 8; Erie v. Caulkins, 85 Pa. 247; O'Donnell v. Telephone Co., 250 Pa. 440; Simonton v. Morton, 275 Pa. 562; Swartz v. Boro., 278 Pa. 134; Bojarski v. Howlett, 291 Pa. 485; Long v. Paving Co., 295 Pa. 163; Scalise v. Venzie, 301 Pa. 315; McDonald v. Levinson, 302 Pa. 287. Defendants are liable even though plaintiff was an employee: McGeehan v. Hughes, 217 Pa. 121; Swartz v. Bergendahl-Knight Co., 259 Pa. 421; Reilly v. Reilly, 264 Pa. 103; Lynott v. Coal Co., 269 Pa. 554; Lemon v. Lonker, 97 Pa. Super. 240.
Khoury v. Edison Electric Illuminating Co. (Mass.), 164 N.E. 77, decided December 14, 1928. See Oregon Fisheries Co. v. Elmore Packing Co., 69 Or. 340 ( 138 P. 862); Cooley on Torts (3 ed.), 1088, 1092; Post Pub. Co. v. Schickling, 22 Ohio App. 318 ( 154 N.E. 751); Hamrin v. Thompson Yards, Inc., 172 Minn. 536 ( 216 N.W. 247); Bell v. State, 153 Md. 333 ( 138 A. 227, 58 A.L.R. 1051); Call v. DetroitJournal Co., 191 Mich. 405 ( 158 N.W. 36, 19 A.L.R. 1164), and notes recorded in 17 A.L.R. 621, 622, 29 A.L.R. 470, 54 A.L.R. 627; Giroud v. Stryker Transp. Co. (N.J. Err. App.), 140 A. 305, 306, point 3; Bojarski v. Howlett, Inc., 291 Pa. 485 ( 140 A. 544); 39 C.J. 1316, 1318, ยง 1518; Sorenson v. Smith, 65 Or. 78 ( 129 P. 757, 131 P. 1022, Ann. Cas. 1915A, 1127, 51 L.R.A. (N.S.) 612). Since E.L. McDougal was not authorized to delegate his authority as an adjuster and he is an independent contractor, or sustains a relation to his principal similar to an independent contractor, defendant corporation is not liable for the negligence of defendant Shea. If said E.L. McDougal had been driving his own car instead of Shea, defendant corporation would not have been liable to plaintiff.
Error assigned, inter alia, was judgment for defendant n. o. v., quoting record. John J. McDevitt, Jr., with him Bernard J. Kelley, for appellant. โ Appellee was guilty of negligence and judgment n. o. v. for defendant should not have been entered: Curtin v. Somerset, 140 Pa. 70; Stubbs v. Light Co., 84 Pa. Super. 1; Bojarski v. Howlett, 291 Pa. 485; Williams v. Floral Co., 252 Pa. 140; Janock v. R. R., 252 Pa. 199; Dougherty v. R. R., 257 Pa. 118. Layton M. Schoch, with him W. W. Smithers, for appellee. โ It was neither charged nor proved that there rested upon appellee or Simkins any duty to make the test or inspect the boiler or flange: Durkin v. Coal Co., 171 Pa. 193; D'Jorko v. Coal Mining Co., 231 Pa. 164; Golden v. Coal Co., 225 Pa. 164.
J. Webster Jones, and with him Ralph N. Kellam and Irvin F.Holt, for appellant, cited: Milwaukee Locomotive Co. v. Point Marion Coal Co., 294 Pa. 238; Puhlman v. Excelsior Co., 259 Pa. 393. Ralph B. Evans, and with him Charles W. Gamble, for appellee, cited: Standard Oil Co. v. Anderson, 212 U.S. 215; Bojarski v. Howlett, Inc., 291 Pa. 485. Argued September 30, 1932.
Under such circumstances, the Pennsylvania courts have consistently held that such loaned employees are servants of Jarvis, who alone becomes liable for any negligence of the loaned employees on this 3-C project. Bojarski v. M.F. Howlett, Inc., 1928, 291 Pa. 485, 491-492, 140 A. 544; McGrath v. Edward G. Budd Mfg. Co., 1944, 348 Pa. 619, 623-624, 36 A.2d 303; McConnell v. Williams, 1949, 361 Pa. 355, 359, 65 A.2d 243; Wall v. Penn Lumber Mill Works, 1952, 171 Pa. Super. 512, 515, 90 A.2d 273. These cases emphasize that the primary tests for the purpose of determining liability under the doctrine of respondeat superior is who has the power to direct and control the work of the employee on the specific project and whose business is being performed.
In holding that Jackson was an employee of Mine Safety when working on the projects of Mine Safety, it is not necessary to decide that his employment with Catalyst had terminated. Bojarski v. M.F. Howlett, 1928, 291 Pa. 485, 140 A. 544; Robson v. Martin, 1928, 291 Pa. 426, 140 A. 339; Brown v. Saltillo Borough Council, 1939, 137 Pa. Super. 599, 10 A.2d 93. See also Restatement of Agency, ยง 226, Comment b, Illustration 5.
These motions are now before the Court. In answer to one interrogatory the jury found that, at the time of the accident, the crane operator, although moving the crane in response to signals by Fisher's foreman, was nevertheless the employee of Hull. It is doubtful, in view of the case of Bojarski v. M.F. Howlett, Inc., 291 Pa. 485, 140 A. 544, whether the evidence supports this finding. It is not necessary, however, to decide that question in view of the finding against Hull on the other count, namely, failure to have proper safety equipment on a crane which was to work in the vicinity of electric supply lines.
This evidence, congealed by the verdict, excludes the notion that Petersen was a volunteer or that he was plaintiff's servant. In Bojarski v. Howlett, Inc., 291 Pa. 485 (1928), this Court said: "The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time, and in respect to the very transaction out of which the injury arose." Paugh sent Petersen to hold the ladder and plaintiff asked him, on arrival, to do the very thing he had been sent to do. This is analogous to former Chief Justice STERN's example in Pennsylvania Smelting Refining Co. v. Duffin, supra, ( 363 Pa. 564 (1950)): "It would be absurd to suppose that a passenger hiring a . . . car . . . with its operator, would become the employer of the operator merely because of telling him what he wanted done."