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MATURE v. ANGELO (05/25/53)

May 25, 1953

MATURE
v.
ANGELO, APPELLANT



Appeal, No. 140, Jan. T., 1953, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1949, No. 4726, in case of Angelo Mature v. Nicholas Angelo. Judgment affirmed.

COUNSEL

Thomas E. Comber, Jr., with him William R. Klaus and Pepper, Bodine, Stokes & Hamilton, for appellant.

Robert M. Bernstein, with him Isadore H. Bellis and Maurice H. Brown, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 373 Pa. Page 595]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The law governing tort liability arising from the negligence of a "borrowed" employe is so well established in this Commonwealth that, when applied to the present facts, there is no question but that the case was correctly decided by the court below.

The principles -- so many times proclaimed and reiterated -- may be stated categorically as follows:

1. One who is in the general employ of another may, with respect to certain work, be transferred to the service of a third person in such a way that he becomes, for the time being and in the particular service which he is engaged to perform, an employe of that person: Robson v. Martin, 291 Pa. 426, 430, 431, 140 A. 339, 341; McGrath v. Edward G. Budd Manufacturing Co., 348 Pa. 619, 622, 36 A.2d 303, 304, 305; McConnell v. Williams, 361 Pa. 355, 360, 65 A.2d 243, 245; Standard Oil Co. v. Anderson, 212 U.S. 215, 220; Restatement, Agency, ยง 227.

2. The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it: Venezia v. Philadelphia Electric Co., 317 Pa. 557, 559, 177 A. 25, 26; Walters v. Kaufmann Department Stores, Inc., 334 Pa. 233, 235, 5 A.2d 559, 560; Dunmire v. Fitzgerald, 349 Pa. 511, 516,

[ 373 Pa. Page 59637]

A.2d 596, 599; Siidekum, Admr., v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 413, 414, 45 A.2d 59, 61; DiGregorio, Admr., v. Berg, 359 Pa. 376, 379, 59 A.2d 80, 81; McConnell v. Williams, 361 Pa. 355, 359, 65 A.2d 243, 245; Pennsylvania Smelting & Refining Co. v. Duffin, 363 Pa. 564, 565, 70 A.2d 270; Funk v. Hawthorne, 138 F. 2d 686, 688 (C.C.A. 3).

3. A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not: Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A.2d 596, 599; Siidekum, Admr., v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 414, 45 A.2d 59, 61; ...


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