The route that DiTommaso chose for the test drive was a route he normally took on such drives with prospective customers. See Reed v. Bennett, 281 Pa. 332, 126 A. 764 (1924) (it is common for an employee of a car dealership to take an intending purchaser on a test drive to a locality that has not necessarily been designated by the employer). We cannot find that ASM's and DiTomasso's knowledge or lack of knowledge of the conditions and circumstances surrounding the test drive caused Ferry's injuries.
While demonstrating the truck, Lewis was assisting in making a sale of the truck for the Byers Company. "The control of the work reserved to the employer which makes the employee a mere servant is a control, not only of the result of the work, but also of the means and manner of the performance thereof:" Simonton v. Morton, 275 Pa. 562, 569, 119 A. 732. And it means a power of control, not necessarily the exercise of the power. Lewis was not merely performing a service that was sold or loaned by his general employer to Hazlett within the rule applied in Puhlman v. Excelsior Co., 259 Pa. 393, 103 A. 218, and kindred cases; he was at the same time assisting the Byers Company in selling the truck: Petruska v. Packard Motor Car Co., 83 Pa. Super. 112, 115; Reed v. Bennett, 281 Pa. 332, 126 A. 764. He was acting for both parties in accord with their common understanding, the power of control as to one part of this work being in Byers Company, and, as to the other part, in Hazlett. The next question, then, is, were the acts of Lewis, that resulted in the explosion, performed on behalf of both? Was he then acting pursuant to directions from each? He was promoting the interest of Byers Company in manipulating the machinery on the truck, to cause the gasoline to flow, for, obviously, if the mechanism on the tank would not discharge the load, Hazlett would hardly wish to purchase the truck.
In the case of Petruska v. Packard Motor Car Co., 83 Pa. Super. 112, the facts were closely analagous to those in the case at bar, and it was held that the question whether the servant was acting for his master in the course of his employment or within the scope of his authority, was for the jury to determine. See also Reed v. Bennett, 281 Pa. 332; Zondler v. Foster Mfg. Supply Co., 277 Pa. 98. Judge JONES, who wrote the dissenting opinion for the minority of the court below in which President Judge McLEAN joined, entertained the view that a new trial should be granted and that the question of whether Bowie was on the business of his employer at the time of the accident should be submitted to a jury under proper instructions.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ. Affirmed. Wilbur F. Galbraith, of Cunningham, Galbraith Dickson, with him Dan T. R. Dickson, for appellant. — The case was for the jury: Haring v. Connell, 244 Pa. 439; Herrington v. Hill, 60 Pa. Super. 202; Theil v. Wolfe, 77 Pa. Super. 312; Stroman v. Motors Corp., 82 Pa. Super. 129; Sieber v. Russ Bros., 276 Pa. 340; Gojkovic v. Wageley, 278 Pa. 488; Reed v. Bennett, 281 Pa. 332; Jones v. Quaker City Cab Co., 84 Pa. Super. 80; Holzheimer v. Lit Bros., 262 Pa. 150. If declarations are made by an agent while carrying out his employment, which declarations are against the interest of the principal, then such are admissible in evidence primarily under the law of principal and agent and not a matter of the law of evidence at all: Bradley v. Tel. Tel. Co., 54 Pa. Super. 388; Treon v. Shipman, 275 Pa. 246; Marcus v. Gimbel Bros., 231 Pa. 200.
The burden of proof was on appellants to show that Strasser was a servant and acting within the scope of his employment: Luckettv. Reighard, 248 Pa. 24, 93 A. 773; Curran v. Lorch, 243 Pa. 247, 90 A. 62. They failed to meet this burden. Strasser was hired to do an isolated job which did not involve any operation of the car beyond taking it to the wash rack and returning it to appellee's place of employment, which distinguishes this case from Reed v.Bennett, 281 Pa. 332, 126 A. 764; Welsh v. Feyka, 119 Pa. Super. 44, 179 A. 810, where automobile salesman, one, demonstrating a car and the other soliciting a prospective purchaser, were permitted to serve their own interests at the same time. And even if Strasser were considered an agent rather than an independent contractor, he had clearly departed from the scope of his employment and was engaged on a mission of his own: Gittelman v. Hoover Co., 337 Pa. 242, 10 A.2d 411; Solomon v.Commonwealth Trust Co., 256 Pa. 55, 100 A. 534; Myers v.Strousse, 94 Pa. Super. 440, (see Chikowska v. PradoGarage, 349 Pa. 508. The length of the trip and the extent of the digression show an independent journey recognized even by the case upon which appellants rely: Blaker v. PhiladelphiaElectric Co., 60 Pa. Super. 56. Where the facts are undisputed, the question whether or not the act of a servant is within the scope of his employment is for the court: Guille v.Campbell, 200 Pa. 119, 49 A. 938; Vadyak v. L. and N.E. RailroadCo., 318
The mere fact that Franck may have chosen such time and route as would enable him, to some extent, to combine business and pleasure, was not necessarily inconsistent with the purpose for which the car was placed under his control. See Parker v. Matheson Motor Car Co., supra; Reed v. Bennett et al., 281 Pa. 332, 126 A. 764. The testimony of Franck that he went to the Valley View Inn to see the proprietor about prospective purchasers, together with the other circumstances of the case, justified the inference by the jury that he was acting within the scope of his employment at the time of the accident. If his primary purpose and the probable result of his conduct were in the interest of the defendant, the jury might properly infer that he was acting within the scope of his employment.