Joseph v. United Workers Ass'n

• Citation: 23 A.2d 470,343 Pa. 636
• Decision Date: 06 January 1942
• Docket Number: 247
• Parties: Joseph v. United Workers Association, Appellant
• Court: United States State Supreme Court of Pennsylvania

23 A.2d 470

343 Pa. 636

Joseph v. United Workers Association, Appellant

No. 247

Supreme Court of Pennsylvania

January 6, 1942

Argued December 3, 1941.

Appeal, No. 247, Jan. T., 1941, from judgment of C.P. No. 5 (tried in C.P. No. 4), Phila. Co., Sept. T., 1939, No. 3865 in case of Philip Joseph v. United Workers Association. Judgment affirmed.

Trespass for personal injuries. Before BROWN, J.

Verdict and judgment for plaintiff in sum of $3,125. Defendant appealed.

Judgment affirmed.

Thomas E. Comber, Jr., for appellant.

John J McDevitt, 3rd, with him Joseph M. Leib and John J. McDevitt, Jr., for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. PATTERSON, JUSTICE.

Philip Joseph, appellee, brought this action in trespass against the United Workers Association, appellant, to recover for personal injuries allegedly sustained by him on August 15, 1939, while he was a paying guest at a summer camp operated by the Association near Sumneytown, Pennsylvania, as the result of his stepping into a hole in the floor of a "hayrack" wagon from which he was alighting following a "hay ride" conducted by the Association as part of the regular activities provided by it, without extra charge, for the diversion of its guests. The trial before the court below and a jury terminated in a verdict for the appellee in the sum of $3,125, whereupon the Association, having requested binding instructions in its favor, which were refused, filed a motion for judgment non obstante verdicto, on the single ground that the driver of the team of horses and wagon used in conducting the ride, one Sopel, who was also owner, was not its servant or agent, but an independent contractor. The court below dismissed the motion, concluding the evidence warranted a finding that Sopel was the Association's servant and not an independent contractor. This appeal, taken from the judgment entered in accordance with the verdict, is to review that conclusion only.

The rules applicable in determining whether, in a given case, the relationship of master and servant or that arising from an independent contract exists have been broadly stated, as follows: "'A master is one who stands to another in such a relation that he not only controls the results of the work of that other, but also may direct the manner in which such work shall be done.' 'A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter.' 'The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done'": McColligan v. Penna. R.R. Co., 214 Pa. 229, 232. "'It is essential to the relation of employer and employee . . . that the employer shall have power and authority to direct and control the acts of the alleged employee. Having this power, the employer must respond; lacking it, he is not to be held accountable. Respondeat superior is the foundation of liability; and if the employer or principal is without power to command or direct the acts of the alleged employee or agent, there is no superior whose duty it is to respond for the acts of an inferior'": Eckert v. Merchants Shipbuilding Corp., 280 Pa. 340, 349. See also Cox v. Roehler, 316 Pa. 417, 419; Tyler v. McFadden Newspr. Corp., 107 Pa.Super. 166, 171; Restatement, Agency, Section 220. "Where a contract is let for work to be done by another in which the contractee reserves no control over the means of its accomplishment but merely as to the result, the employment is an independent one establishing the relation of contractee and contractor, and not that of master and servant. . . . The relation of master and servant is not inferable from the reservation of powers which do not deprive the contractor of his right to do the work according to his own initiative, so long as he does it in accordance with the contract": Long v. Eastern Paving Co., 295 Pa. 163, 166. "The very phrase 'independent contractor' implies that the contractor is independent in the manner of doing the work contracted for": Silveus v. Grossman, 307 Pa. 272, 278. See also Colleoni v. D. & H. Co., 274 Pa. 319, 323; Fuller v. Palazzolo, 329 Pa. 93, 105; Tyler v. McFadden Newspr. Corp., supra, 172; Restatement, Agency, Section 2.

Under all the decisions, the basic inquiry, in ascertaining the character of the relationship, is as to whether the alleged servant is subject to the alleged master's control or right to control with respect to his physical conduct in the performance of the services for which he was employed. As was said in Eckert v. Merchants Shipbuilding Corp., supra (p. 349): "All other elements, 'even those which are normal and customary incidents of contracts of service, are, in an evidential point of view, material only insofar as they may tend more or less strongly, under the given circumstances, to show that the alleged master exercised control over the alleged servant'". The precise nature of the relationship, under the evidence, presents a question of fact which it is the exclusive function of the jury to determine, after proper instructions by the court as to the matters of fact to be considered, except where the facts are not in dispute and the evidence is direct and certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact. See Eckert v. Shipbuilding Corp., supra, 351; Campagna v. Ziskind, 287 Pa. 403, 408; Burns v. Elliott-Lewis Elec. Co., 118 Pa.Super. 243, 249.

In the present case, the evidence is that either the camp manager or one Rotstein, a paid employee in charge of recreational activities, arranged with Sopel, a nearby farmer, to have the wagon at the camp, loaded with hay, at a...