George Blakey and James R. Thompson, employees of Philadelphia Transportation Company, August 12, 1941, while repairing a trolley switch on Fifth Street, just north of Allegheny Avenue, in the city of Philadelphia, were fatally injured by being struck by a heavy dump truck owned by Pasquale Capanna and operated by his brother, Philip. The wives of these decedents, as administratrices of their estates, brought separate actions in trespass in which they named as joint defendants the truck owner, the driver, and Eastern Asphalt *Page 146 Company. The cases were consolidated and tried together, and at the conclusion of plaintiffs' testimony as to agency, the trial judge entered a nonsuit in behalf of Eastern Asphalt Company. The jury returned verdicts against the remaining defendants in the sum of $4,000 for each plaintiff and in the sum of $2,000 for Helen Thompson, daughter of one of decedents, although she was not a party. Each plaintiff moved for a new trial because of the alleged inadequacy of the verdicts, and also to take off the nonsuit entered in favor of Eastern Asphalt Company for the reason that, under the testimony adduced, it was for the jury to determine whether or not the driver was an employee and under the control of that company when this unfortunate accident happened. Defendants, Pasquale Capanna and Philip Capanna, moved for judgment n. o. v. on the ground that there was no evidence to go to the jury on the question of the negligence of defendant-driver and the trial judge should have so declared as a matter of law.
After argument, the learned court below refused to remove the nonsuit entered in favor of Eastern Asphalt Company, because "The relation between Pasquale and Philip Capanna was that of master and servant but the relation between Pasquale and the Asphalt Company was that or contractor and contractee"; granted the motions for a new trial as to the other defendants, for the reason that "The verdicts for the plaintiffs were irrational and inconsistent and should be set aside"; and overruled the motions for judgment n. o. v., on the ground that the question of negligence of Philip Capanna, who was driving the truck involved, was for the jury to decide. These six appeals then followed, and being argued together, will be disposed of in one opinion.
From a careful reading of the testimony, all of which was given on the side of plaintiffs, we are convinced that the court below did not err in refusing to remove the nonsuit entered as to defendant, Eastern Asphalt Company. The driver was not that company's servant, and, *Page 147 therefore, it was not liable. The record shows that aside from and clearly independent of his employment as a service man for Eastern Asphalt Company, Pasquale Capanna was engaged in the business of general hauling for anyone applying. For this purpose, he purchased and was the owner of two trucks, one of which was involved in this accident. The hauling service rendered included the furnishing of a driver and truck. At the time of the happening of this accident, the truck was engaged in hauling material for Eastern Asphalt Company, to which it had been hired by Pasquale with his brother and employee as driver. Under the hauling contract with the Asphalt Company, the driver was to take material from the company's plant to consignees designated by its superintendent. Separate and apart from his compensation received as service man and having no connection with it, Pasquale was paid weekly by the company for his truck and driver, sometimes on an hourly basis and sometimes on the amount of tonnage hauled. He garaged the vehicle at his own home, paid his driver and also supplied all necessary tires, gasoline and oil, as well as made the required repairs.
Under these circumstances, the burden of proof is upon plaintiff to show that the principle of respondeat superior applies: Matlack v. Chalfant, 69 Pa. Super. 49. "The presumption is that if the injury happened while the driver was operating the truck it was in the original master's business, as it occurred in doing the specific thing the driver was engaged by the owner to do, and to whom the driver was directly responsible": Thatcher v. Pierce, 281 Pa. 16, 21, 125 A. 302. It is well-settled that the distinguishing criterion in determining whether the employment is an independent one establishing the relation of contractor and contractee, or that of master and servant, is the right to control the means of accomplishing the result: Lenhart v. Emmons Co., 99 Pa. Super. 180. It is practically decisive of his independence, if the contractor employs, pays and *Page 148 has full power to control the workmen: Simonton v. Morton,275 Pa. 562, 119 A. 732, 14 R. C. L. 71.
In the instant case, the owner, Pasquale Capanna, retained all power of direction as to the operation of the vehicle. He never for a moment parted with that control of the management of the truck by the driver, whom he alone hired, paid and could discharge. The Asphalt Company was not in the business of hauling; that, however, was the business of Pasquale. He directed his driver to report with the truck to the yard of the company and its superintendent determined merely where the truck was to go and the load it was to carry. The company had nothing to do with the operation of the truck, nor did it attempt to assume such control. The employment was an independent one establishing the relation of contractor and contractee.
In Wright v. Wilson Company, 83 Pa. Super. 487, 489, where the facts were quite similar to those of the instant case, Mr. Justice LINN, when a member of the Superior Court, said: "The direction to one engaged in 'general hauling' to haul property to or from a specific place does not change the nature of, or convert a special employment into the general relation of master and servant; a man does not become answerable for the negligence of a taxi-driver, or of a carrier merely by specifying where he wishes to go or to have his property delivered. There is no evidence to contradict the testimony outlined above, which is clearly insufficient for the application of the rule respondeat superior." See also Healeyv. Carey, Baxter Kennedy, Inc., 144 Pa. Super. 500,19 A.2d 852, where Judge HIRT, speaking for the Superior Court, held, in a very comprehensive opinion that the relation was that of contractor and contractee, rather than of master and servant, in an analogous situation to that with which we are here concerned.
The evidence in the instant case completely fails to establish that Eastern Asphalt Company controlled, had the right to control or attempted to control the manner *Page 149 in which the truck was operated at the time of the accident.
As to the granting of a new trial to the other defendants, and the overruling of their motions for judgment n. o. v., there was some confusion in this phase of the case; the verdicts are questionable; that in favor of Helen Thompson is void; and to make certain that all concerned have a fair day in court and that justice will be done, we think it best to affirm these actions of the court below.
Judgment of nonsuit as to the defendant, Eastern Asphalt Company, and orders granting new trials as to defendants, Pasquale Capanna and Philip Capanna, and overruling their motions for judgment n. o. v., are affirmed.