Appeal, No. 33, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, July T., 1949, No. 2150, in case of Leroy B. Murrin et ux. v. Mary Rifugiato, Jack Rifugiato and Henry Corvino. Judgment affirmed.
Louis Vaira, for appellants.
Frank Reich, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal from judgment n.o.v. entered for two defendants after a verdict of a jury for plaintiffs in a trespass action for damages to real property. The single question presented is whether the tortfeasor was the agent of defendant property owners or an independent contractor.
Leroy and Emma Murrin, husband and wife, owners of a house in Wilkingsburg, Pennsylvania, are plaintiffs. The adjoining lot, on which stands a garage but no dwelling house, is owned by Mary Rifugiato, one of the defendants. Plaintiffs alleged and offered evidence to prove that Mary Rifugiato holds the property for her brother Jack Rifugiato, another defendant. Henry Corvino, the third defendant, was employed by Mary Rifugiato in the spring of 1948 to enlarge the garage on her property so that it would accommodate the truck used by her brother in his wholesale produce
business. Corvino in turn hired William C. Garlow to do certain excavation work necessary to the project.
Plaintiffs alleged in their complaint that in excavating for the foundation of the new garage Corvino's workmen entered on their property, uprooted a large locust tree, broke the concrete sidewalk and steps leading from their back porch to the garage, damaged the foundation and back porch of their home, and destroyed the clothes posts in their back yard. The plaintiffs sued Corvino and the Rifugiatos on the theory that Corvino was their agent in performing the alleged tortious acts. Corvino joined Garlow as an additional defendant, alleging that Garlow had been hired as an independent contractor to make the excavation. The evidence at trial showed conclusively that Garlow's men had worked directly under the supervision of Corvino, and the trial judge granted Garlow's motion for binding instructions. No appeal has been taken from that ruling. The jury returned a verdict against the three original defendants in the amount of $2850.00, but the learned court below entered judgment n.o.v. for the Rifugiatos because "All the evidence points to the fact that Corvino was an independent contractor." Plaintiffs have appealed.
The principles of law which determine whether a workman is an agent or an independent contractor were stated with clarity by the present Chief Justice (then Mr. Justice) HORACE STERN, in Feller v. New Amsterdam Casualty Company, 363 Pa. 483, 70 A.2d 299, at p. 486: "The legal distinction between an employee and an independent contractor is so well established as to require little if any discussion. The characteristic of the former relationship is that the master not only controls the result of the work but has ...