Appeal, No. 124, March T., 1953, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 160, in case of Angeline Ragano et vir., v. Socony Vacuum Oil Co. Order affirmed.
J. Thomas Hoffman, with him Coleman Harrison and Homer W. King, for appellants.
Clyde A. Armstrong, with him William C. O'Neill and Thorp, Reed & Armstrong, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiffs appeal from the order of the court below refusing to take off a compulsory non-suit in this action of trespass for personal injuries suffered by the wife-plaintiff. Viewed in a light most favorable to the plaintiffs, the latter's evidence established the following facts: About 9:00 P.M. on December 27, 1948, the automobile of one Ehland was legally parked in front of Kaufmann's Department Store in the city of Pittsburgh. Ehland discovered that his left rear tire was flat and went to the service station of the Socony Vacuum Oil Co. and asked the attendant to repair it. The attendant told him that he could not do so but turned to one "Slim" Dalton and said: "Slim, do you want to make a buck and fix this man's tire?" Dalton hesitated and then told Ehland that he would, and asked the attendant if he could borrow the jack. Having borrowed the jack and two other tools, Dalton proceeded to the car with Ehland.
He placed the jack under the left rear wheel with the handle extended back and proceeded to remove the tire. As he was replacing the wheel, after repairing the tire at the appellee's service station, the wife-plaintiff proceeded on the street between the parked cars in an attempt to board a trolley. Failing in this she walked toward the sidewalk between the automobile of Ehland and the one to the rear of it, when she tripped and fell over the jack handle, sustaining personal injuries.
As to the agency claimed to have existed between the defendant, Socony Vacuum Oil Co., and Dalton,
two witnesses testified that they had dealt with the appellee; the occasionally Dalton would take their cars at the station after they had told him what they wanted done; that at times they paid Dalton for what he did ant at other times had the attendant charge it. They stated that the attendants were in uniform while Dalton was not; that the latter was not always at the station but was there "when he wasn't drunk"; that Dalton had never repaired their tires. In the instant case Dalton was paid by Ehland for the repair of his tire and there was no proof that he did anything but obtain the full amount for himself.
The most that can be said is that the plaintiffs established Dalton as a sort of hanger-on of the Socony Vacuum Oil Co. who picked up what money he could by performing various services for appellee's customers with appellee's permission. He was paid by the individuals, although at times, at the customer's request, the attendant would pay the cost to Dalton and obtain reimbursement from the customer purely as a courtesy to the customer. Appellee's attendants were always in uniform; Dalton never was. Nor was he always present; in fact one of the plaintiffs' witnesses said that Dalton would be at the station "when he wasn't drunk."
The conversation leading to Dalton's engagement by Ehland to fix the tire shows that he was not an employe. He was asked by the attendant if he wanted "to make a buck and fix this man's tire." He was not ordered or directed by the appellee, nor was he paid by the company. Instead, he was paid $1.50 by Ehland and there is nothing to show that any part of it went to the appellee. Dalton reluctantly agreed to do it, and being told by Ehland that he had no jack, ...