McColligan v. Pennsylvania Railroad Co.

• Decision Date: 05 March 1906
• Docket Number: 167
• Citation: 63 A. 792,214 Pa. 229
• Parties: McColligan, Appellant, v. Pennsylvania Railroad Company
• Court: Pennsylvania Supreme Court

63 A. 792

214 Pa. 229

McColligan, Appellant, v. Pennsylvania Railroad Company

No. 167

Supreme Court of Pennsylvania

March 5, 1906

Argued January 9, 1906

Appeal, No. 167, Jan. T., 1905, by plaintiff, from judgment of C.P. No. 2, Phila. Co., June T., 1903, No. 4,162, on verdict for defendant in case of Dominick McColligan v Pennsylvania Railroad Company. Affirmed.

Trespass to recover damages for personal injuries. Before SULZBERGER J.

The opinion of the Supreme Court states the case.

Defendant presented the following points:

1. That as the evidence fails to establish the relation of master and servant between the driver of the hansom and the defendant, the latter cannot be held responsible for the former's negligence and, consequently, the verdict should be for defendant.

2. That upon all the evidence the verdict should be for the defendant. Answer: I affirm both points.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1, 2) answers to points, quoting them.

Judgment affirmed.

Thomas James Meagher, for appellant. -- Where there is a question as to the existence or nonexistence of the relation of master and servant in a negligence case, the chief and ultimate test is the test of control. If the person sought to be charged as master had the power of control over the person alleged to be the servant, liability arises: Yewens v. Noakes, L.R. 6 Q.B. Div. 530; Singer Mfg. Co. v. Rahn, 132 U.S. 518 (10 S.Ct. Repr. 175); Bailey v. Troy, etc., R.R. Co., 57 Vt. 252; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361; Stork v. Philadelphia, 199 Pa. 462.

The master can compensate his servant in any way that he sees fit. He can give to him either a stipulated salary, a part of the profits or the whole profits on a specified sum being paid to him: Atlantic Transport Co. v. Coneys, 82 Fed. Repr. 177.

Edwin J. Sellers, of Sellers & Rhoads, for appellee, cited: Hershinger v. Penna. R.R. Co., 25 Pa.Super. 147; Connor v. Penna. R.R. Co., 24 Pa.Super. 241.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE ELKIN:

The decisive question raised by this appeal is whether as between the defendant and the driver of the hansom the relation was one of master and servant or of bailor and bailee. If the former, the master is liable for the negligence of the servant; if the latter, the negligence of the bailee cannot be imputed to the bailor. The contract of letting is in writing, the printed rates and regulations are made part thereof, so that the determination of the relation is a question of law for the court and not of fact for the jury.

The lease under which defendant let the hansom to the driver provides that "for and in consideration of the sum of $4.50, and on the conditions stated below, hires to H. Priest, driver, hansom No. 65 with two horses, for thirteen hours from 9:30 A.M. of the date stamped on the back of this certificate." The conditions stated therein are in substance that the driver shall assume all liability for damages to any person or property, and that he agrees not to use a horse longer than six and one-half hours without returning to the stable for exchange, to wear a uniform, to abstain from the use of intoxicating liquors and to present a neat and clean appearance, to conform to the prescribed rates and regulations, and upon failure to observe these conditions the company reserves the right to cancel the unexpired term of the lease.

There can be no doubt that upon its face this contract of letting establishes the relation of bailor and bailee. The learned counsel for appellant, who has ably and exhaustively presented the question, concedes that if the case rested upon the contract alone, a bailment would result within the meaning of the law. It, however, is earnestly contended that this prima facie relation is changed by reason of the conditions, rules and regulations, made part of the contract, to which the driver was subjected. These regulations provide in considerable detail the rates to be charged for various distances, different kinds of vehicles, and length of time used. Certain boundaries are prescribed beyond which the driver cannot go without permission, and he is not permitted to perform other kinds of work such as carrying baggage and doing errands, during the term of the lease. It is also argued that because defendant company employs a cab agent to supervise this service, to secure men for the work, make contracts with the drivers, and enforce the terms and conditions of the lease, such control is thereby exercised as to make the company liable as master.

We must first consider what is necessary to establish the relation of master and servant. This question has been considered by a large number of text-writers and frequently passed upon by the courts. All authorities agree upon the following definitions of master, servant and the relation existing between them:

"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:" 20 Am. & Eng. Ency. of Law (2d ed.), p. 11, 12. In more concise form these definitions mean that the master directs the manner in which the work shall be done and controls the results of the work. The servant is under the entire control and always subject to the direction of the master. The relation exists when the master not only has the right to select his servant, but has the power to remove and discharge him, with or without cause, and to direct what shall be done and the manner of doing it.

In the case at bar the...