We have held in an unbroken line of cases that when the evidence is conflicting, or when different inferences from it can reasonably be drawn, the question as to whether a borrowed servant is acting for the lending or the borrowing employer is for the jury. "If it is not clear from the evidence which of the defendants was the controlling master, then, inasmuch as the business of both was benefited, the question is for the jury to find, if they can, who exercised supervision and control at the time of the accident." Lang v. Hanlon, 302 Pa. 173,178, 153 A. 143, 145; Rosen v. Diesinger, 306 Pa. 13, 18,158 A. 561, 562; Dougherty v. Proctor Schwartz, Inc., 317 Pa. 363,176 A. 439; Pennsylvania Company v. Philadelphia ElectricCo., 331 Pa. 125, 200 A. 18; Walters v. Kaufmann DepartmentStores, Inc., 334 Pa. 233, 237, 238, 5 A.2d 559, 561; Joseph v.United Workers Association, 343 Pa. 636, 639, 23 A.2d 470, 472,473.
I cannot agree with the majority opinion that "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 in which *Page 150 the truck was operated at the time of the accident." I admit that there is evidence in the record from which it might be found that at the time of the accident Philip Capanna was the servant of his brother Pasquale Capanna and not of Eastern Asphalt Company, but there is also evidence to the contrary, sufficient, in my opinion, to warrant a jury in concluding that Eastern Asphalt Company had such right of control over the operator of the truck as to fasten upon it the liability of an employer.
Pasquale Capanna, the alleged owner of the truck, testified that he was a mere employee of Eastern Asphalt Company getting $35. a week, and that it was Eastern Asphalt Company which asked him "to get a truck" and "loaned" him the money to buy it.
The fact, if true, that Pasquale Capanna paid the wages of his brother, Philip, does not determine whose servant Philip was while he was hauling for Eastern Asphalt Company:Robson v. Martin, 291 Pa. 426, 430, 140 A. 339, 341. Indeed,both Pasquale Capanna and Eastern Asphalt Company might be liable, because, as was said in Koontz v. Messer, 320 Pa. 487,492, 181 A. 792, 794: "That a servant of two masters may be acting within the scope of his employment by each at the same instant and in the performance of the same act, and may thereby make both liable, is clear, where both have a right of control over the servant, even though the masters are not joint employers and their purposes do not coincide." To the same effect is Grasberger v. Liebert Obert, Inc., 335 Pa. 491,493, 6 A.2d 925, 926.
Philip Capanna, the driver of the truck, testified as follows: "Q. At the time of this accident, whom were you working for? A. Why, the Eastern Asphalt Company."
And again: "Q. Whom did you say was your boss? A. Pasquale Capanna. Q. You took orders from him, didn't you? A. No, I didn't take orders from him; I was just told to report; he would tell me to report to the *Page 151 yard — Q. Then the people at the yard where you reported would tell you where to go? A. They would give the orders. Q. Is that right? A. That's right."
And again: "Q. How long had you been hauling asphalt for the Eastern Asphalt Company? A. I'd say about a couple of years."
And again: "Q. During the month of August, 1941, did you receive any orders or instructions from your brother Pat with reference to the work you were to do, or hauling? A. No, sir."
And again: "Q. Your brother would tell you to take the truck and go to the Eastern Asphalt Company, is that correct? A. That's the only order I got. Q. That is the only order you got from your brother? A. That is correct. Q. He told you more than that, didn't he? Didn't he tell you to take your truck and go to the Eastern Asphalt Company and do whatever Barringer told you to do in the way of hauling? A. Report to the yard. Q. To report there — not just report, but to report and do whatever the yard superintendent said in the way of hauling; go to the places he told you to go; is that right? A. That's right."
And again: "Q. Apart from the question that his Honor asked as to what your brother told you to do, you received no other orders from your brother while hauling from the Eastern Asphalt? A. No, sir."
Pasquale Capanna, the alleged owner of the truck, testified as follows: "Q. Mr. Capanna, did you give Philip Capanna, the driver of this truck, any instructions on that day as to where to go, what to do, or what to haul? A. No, I didn't."
And again: "Did you have any authority or right to give your brother Philip Capanna any orders as to the driving of this truck when he reported to the job? A. No, I didn't. Q. Your answer is no? A. No."
And again: "Q. Did you tell your brother, Philip, that he should follow out the instructions of Mr. Barringer? A. Yes, because he was to do whatever Mr. Barringer *Page 152 said, because, after all, he was Philip's boss." (The latter part of this answer was stricken out by the court, — I think improperly.)
And again: "Q. At any rate, the next morning, if you know, did Phil Capanna report for work at the Eastern Asphalt? A. Yes. Q. And did you give him any instructions on that day what to do? A. No, I didn't."
These excerpts from the testimony all tend to show that after Philip Capanna reported at the yard of Eastern Asphalt Company he was under the control, and subject to the orders, of its superintendent, Mr. Barringer. Pasquale Capanna so states, and that he did not give, and had no authority or right to give, any instructions whatever in regard to the operation of the truck. In view of the testimony quoted I do not see how the court can take the issue from the jury and itself determine what is purely a question of fact. I therefore dissent from the affirmance of the judgment of non-suit as to Eastern Asphalt Company.