Funk v. Hawthorne

• Decision Date: 05 November 1943
• Docket Number: No. 8390.,8390.
• Citation: 138 F.2d 686
• Parties: FUNK v. HAWTHORNE et al.
• Court: U.S. Court of Appeals — Third Circuit

138 F.2d 686 (1943)

FUNK v. HAWTHORNE et al.

No. 8390.

Circuit Court of Appeals, Third Circuit.

Argued October 22, 1943.

Decided November 5, 1943.

David A. Saltzburg, of Philadelphia, Pa. (Morris W. Kolander, of Philadelphia, Pa., on the brief), for appellant.

Robert M. Bernstein, of Philadelphia, Pa. (Milford J. Meyer, of Philadelphia, Pa., on the brief), for appellee.

Before JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

Michael F. Funk employed as a foreman by the contracting firm of Buckley & Co., Inc., met his death on May 6, 1942, when he was struck by a truck owned by the defendant, Robert Hawthorne, and driven by one Bennett Wilson. The accident occurred in the city of Philadelphia. Plaintiff is the decedent's widow and administratrix of his estate. She sues to recover damages for the death under the provisions of the appropriate Pennsylvania statutes.

As the case comes to this Court, on appeal, only one question is presented. Was Bennett Wilson, who was driving the truck at the time the decedent was struck and killed by it, a servant of the defendant Hawthorne? If so, the judgment must stand. If not, and if at the time of the accident Wilson had become the servant of Buckley & Co., Inc., the action in tort will not lie, and the only recovery is for compensation under the Workmen's Compensation Act, 77 P.S. § 1 et seq., against Buckley. The jury, both by general verdict and special findings, found that Wilson was the servant of Hawthorne and not of Buckley at the time of the accident, and found in favor of the plaintiff, against Hawthorne and in favor of Buckley. The defendant contends that this verdict is not supported by the evidence and that, in spite of the verdict, the undisputed facts show that Wilson had become and was acting as the servant of Buckley at the time of the accident.

Most of the facts are not subject to dispute. It appears that Buckley was engaged in a piece of road building in Philadelphia. He had some trucks of his own on the job; he hired other trucks, with drivers, from Hawthorne. They were paid for by Buckley at a given rate per hour for truck and driver. The work, for which the truck was hired, consisted in driving the truck to be loaded under a power shovel, then driving it from the borrow pit to the appropriate place on the road which was being built and dumping the contents. If direction as to the appropriate place, of loading or dumping, was necessary, one of Buckley's men on the job would indicate where it was. At the close of each day's work Buckley would notify Hawthorne how many trucks would be needed the next day and for how many hours their services would probably be required. Hawthorne chose the drivers. Hawthorne had no part in the construction contract itself; his undertaking was limited to furnishing trucks and drivers for Buckley. This was a regular part of Hawthorne's business.

The relationship of master and servant is no doubt a legal concept, but its existence turns on the establishment of facts which vary from case to case. The same is true when the question is whether a servant who starts as the employee of one master has become the servant of a second master with regard to a given transaction. The defendant in this case urges that the test is who controlled the servant as to details of his conduct at the time of the transaction in question. To establish that Buckley, not Hawthorne, controlled Wilson, the driver at the time of the accident, Hawthorne offered testimony of Andrew Hawthorne, son and supervising employee of defendant, who claimed, with what the jury might have found to be overeagerness, that, by express agreement with Buckley, when the trucks left the Hawthorne garage they were thereafter under the sole control of Buckley. On the other hand, Buckley, himself, denied any such arrangement or that he had any right to control the drivers of the hired trucks "in any way, shape or form." The jury having found in favor of Buckley and against Hawthorne, we must accept the former's version as true.

However, in looking to see whether there is justification for the jury's reaching the conclusion that the driver, Wilson, was Hawthorne's servant and not that of Buckley at the time of the accident, we may look at the other evidence which the jury had aside from what either party claimed the contract for hire of the trucks gave. Among the alleged facts brought out in the testimony which the jury had before it, and which we must assume it accepted are the following:...