Opinion
December 9, 1937.
January 3, 1938.
Negligence — Automobiles — Agency — Control over operation of vehicle — Lessee of concession — Payment in money and services — Evidence.
1. The test of agency in the operation of an automobile is, whether the driver stands in such a relation to the alleged principal that the latter has actual or legal control of the operation of the vehicle at the time of the accident. [380]
2. Where there is no control by the alleged principal over the method or process by which the employment is carried out, responsibility does not attach to the employer for the actions of the person so employed. [381]
3. In an action of trespass for personal injuries, evidence that the defendant was a public restaurant, the parking concession in connection with which was leased by defendant to A, that the contract of leasing required payment by A in money and services, which included driving employees and guests of the restaurant to their homes and elsewhere at the request of its officials, and other odd jobs, that A was the operator of the automobile involved in the accident, which he had borrowed from a friend, and that the accident occurred while he was driving the secretary to the president of the defendant corporation to her home on the instructions of the manager, was held insufficient as a matter of law to establish that A was the agent of defendant at the time of the accident. [378-81]
Argued December 9, 1937.
Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 337, Jan. T., 1937, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1935, No. 6368, in case of Charles Barr v. Anchorage Inn, Inc. Judgment of nonsuit affirmed.
Trespass for personal injuries.
Compulsory nonsuit entered. Motion to take it off refused.
The facts are stated in the opinion of the lower court, GORDON, P. J., as follows:
The plaintiff in this case, who was injured in an automobile accident which occurred at one o'clock in the morning of December 1, 1934, at the intersection of Allegheny Avenue and A Street, in the City of Philadelphia, brought this suit against the Anchorage Inn, Inc., the defendant, which he claimed was responsible for the operation of the automobile involved in the accident which was being operated at the time by one Charles Daniel Coogan. The affidavit of defense denied ownership of the automobile and that it was being operated by Coogan as agent of the defendant, and the nonsuit was granted upon the ground that the plaintiff had failed to show such a relation of principal and agent between the owner and driver of the car on the one side and the defendant on the other as would render the latter liable for its operation by the former.
The following undisputed facts appear from the testimony presented by the plaintiff. The Anchorage Inn, Inc., the defendant, is a public restaurant located on the East River Drive in the City of Philadelphia, the parking concession in connection with which was leased from the defendant by one Coogan, who was the operator of the automobile involved in the accident. The automobile was not the property of the defendant, but had been borrowed from a friend by Coogan, who may, therefore, be considered, for the purposes of this case, as its owner. Coogan testified that on the night of the accident he had been instructed by the manager of the Inn to drive the secretary to the president of the defendant corporation to her home, and that while he was doing so the accident occurred. He further testified as follows concerning the terms of his contract with the defendant for the leasing of the concession: "For the concession I was paying $9 a week, and it was also stipulated that I should go to the liquor store and to the bank and to the arcade and do odd jobs, run errands around the place. Q. As part of your pay for the concession? A. Yes. Q. That was the understanding? A. Yes." Coogan further testified that, under this oral agreement, he had frequently driven employees and guests of the restaurant to their homes and elsewhere at the request of its officials; that he had hauled liquors and provisions to and from the restaurant, and had also performed other services of like character for the defendant. This is the extent of the evidence presented by the plaintiff to establish his contention that Coogan was acting as agent for the defendant corporation in the operation of the automobile when the accident occurred, and upon these facts we are of the opinion that the court properly granted the nonsuit asked for. The test of agency in the operation of an automobile has been repeatedly held to be, Does its driver stand in such a relation to the alleged principal that the latter has actual or legal control of the operation of the vehicle at the time of the accident? If he does, agency exists; if he does not, the driver of the vehicle is not his agent and is in the position of an independent contractor so far as the operation of the vehicle is concerned: Wesolowski v. John Hancock Mutual Life Ins. Co., 308 Pa. 117. In the instant case, the automobile was owned by Coogan. In it and over its operation, the defendant corporation clearly had no interest or control. Coogan was the lessee of the parking concession, for which he paid both in money and in services. But the contract of leasing which required the services to be rendered neither expressly nor impliedly gave the defendant corporation any right to control the operation of the concession or the manner in which Coogan should drive his own automobile while performing the services contracted for. It had no power to prescribe the route he should take, the speed at which he should travel, or the manner in which he should operate the automobile in performing the services. These were matters as to which Coogan was his own master. The mere fact that he was taking someone home in response to a request, or, if you choose, an order given to him under the contract by the manager of the Inn, did not make him the defendant's servant or agent in the operation of the vehicle. In the case of Tyler v. MacFadden Newspaper Corp., 107 Pa. Super. 166, the Superior Court, reversing this court, it was held that a newspaper carrier, who was employed to deliver newspapers for a newspaper company under a contract by which the delivery truck operated by him was owned by the newspaper and leased under a bailment lease to the carrier, was an independent contractor, and that the newspaper was not responsible for the negligent operation of the truck. It would seem from the authorities that, whenever there is no control by the alleged principal over the method or process by which the employment is carried out, responsibility does not attach to the employer for the acts of the person so employed. The evidence in the present case failed to disclose that the defendant had such control over the operation of the automobile by Coogan, and the frequency with which the services were performed cannot by their mere repetition alter the basic relation of the parties. It served no purpose, therefore, to multiply the number of instances in which Coogan had similarly transported employees or guests of the defendant corporation at the direction of its officials, for each act was equally devoid of control by the defendant over the manner and method of the transportation.
It was for the foregoing reasons that we overruled the motion to take off the compulsory nonsuit in this case.
Plaintiff appealed.
Error assigned was refusal to take off nonsuit.
Frank B. Brennan, with him John F. Finney, for appellant.
Benjamin R. Simons, of Syme, Simons Ziserman, for appellee.
The judgment of nonsuit is affirmed on the opinion of President Judge GORDON.