Appeal, No. 177, Jan. T., 1949, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1947, No. 2913, in case of Pennsylvania Smelting & Refining Co. v. John J. Duffin. Judgment affirmed.
J. Webster Jones, for appellant.
Charles M. Solomon, with him Jerome J. Rothschild, and Fox, Rothschild, O'Brien & Frankel, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE HORACE STERN
We are concerned here with the not unfamiliar problem of determining the party legally responsible for the negligence of a borrowed employe. The controlling test in such a case is well established; it is whether, in the particular service which the employe in engaged to perform, he continues liable to the direction and control of his general employer or becomes subject to that of the party to whom he is lent or hired. The criterion is not whether the borrowing employer
the premises. Plaintiff brought the present action against defendant for the damages which it thereby sustained. The learned trial judge, sitting without a jury, found as a fact that the breaking of the wire and the consequences that followed were due to the negligence of the operator in allowing the boom of the crane to strike the guy wire, and the court awarded to plaintiff damages for the loss of lead fumes during the several months which elapsed before the smoke stack could be replaced and during which period plaintiff was unable to capture the fumes from the smoke but had to allow them to discharge directly into the open air. Defendant appeals on the ground that in the operation of the crane the operator was the servant, not of defendant, but of plaintiff, and that therefore no cause of action existed.
It should be quite obvious that the facts admit of no interpretation other than that the operator of the crane remained at all times in the exclusive employ of defendant and that plaintiff not only had no right to control him in the manner in which he performed his work but in fact never asserted any such right nor sought to direct him other than merely to point out to him the job to be done. Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, since he is engaged in the very occupation for which he was originally so employed: Thatcher v. Pierce, 281 Pa. 16, 21, 125 A. 302, 303; Blakey, Administratrix, v. Capanna, 349 Pa. 144, 147, 36 A.2d 789, 790; DiGregorio, Administrator, v. Berg, 359 Pa. 376, 379, 59 A.2d 80, 81; Rest. Agency, § 227, comment b. That initial presumption is here strengthened by all the circumstances attending the hiring and the operation of the crane. Defendant was in the regular business of renting
cranes together with their operators, and he had the power not only in each instance to send an operator of his own choice but at any time at his pleasure to take him off the job and substitute another, -- something which, of course, plaintiff had no right to do. The possession of such power is significant in the consideration of the right of control: Funk v. Hawthorne, 138 Fed. 2d 686, 688; see also Healey v. Carey, Baxter & Kennedy, Inc., 144 Pa. Superior Ct. 500, 504, 19 A.2d 852, 854; Rest. Agency, § 227, comment c. Plaintiff was not in the business of operating cranes, which is an activity requiring technical skill on the part of the operator, -- a fact that is likewise important in determining the question here involved, for it is inconceivable that the parties could have intended that plaintiff was to direct a specialist in a field in which it would have been wholly incompetent: Festi v. Proctor & Schwartz, 107 Pa. Superior Ct. 349, 357, 163 A. 354, 356; Rest. Agency, § 227, comment c.
The chief contention of defendant seems to be based upon the fact (1) that defendant gave no instructions to the operator upon his setting off with the crane, and (2) that upon the operator's arrival plaintiff's representative pointed out to him the pile of lead fumes and the freight car into which they were to be loaded, -- in other words, explained to him the job he was to perform. It is wholly immaterial that defendant gave no instructions to his operator since the controlling question is merely as to his right to give instructions; it is obvious that no instructions are called for every time a crane is rented as to the manner in which it is to be operated. Nor did the fact that plaintiff's representative pointed out to the operator the work to be done and the place ...