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GEORGE v. NEMETH (09/26/67)

decided: September 26, 1967.

GEORGE, APPELLANT,
v.
NEMETH



Appeal from judgment of Court of Common Pleas of Northampton County, Oct. T., 1964, No. 258, in case of Mary George v. Fred Nemeth and William Freihofer Baking Co.

COUNSEL

Norman Seidel, with him George C. Laub and Arnold J. Falk, for appellant.

James J. McConnell, with him Snyder, Wert, Wilcox, Frederich & Doll, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Justice Musmanno dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 426 Pa. Page 553]

On February 19, 1963, Mary George was struck by a bakery truck owned and operated by one Fred Nemeth. Subsequently she instituted an action of trespass against Nemeth wherein she joined the William Freihofer Baking Company [Freihofer] as an additional defendant, alleging that Freihofer was liable to the plaintiff under the doctrine of respondeat superior. Freihofer filed an answer specifically denying the existence of any agency relationship between it and Nemeth, whereupon, with the consent of all concerned parties, the court below heard argument on this issue and decided it adversely to Miss George. The sole question before us is the correctness of that ruling. Since the facts are not disputed the parties agree that the question of agency is one to be decided by the court as a matter of law, Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299 (1950).

The legal distinction between an employee and an independent contractor has been reiterated by this Court on numerous occasions. See, e.g., Green v. Independent Oil Co., 414 Pa. 477, 201 A.2d 207 (1964); Johnson v. Angretti, 364 Pa. 602, 73 A.2d 666 (1950); Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299 (1950); Joseph v. United Workers Ass'n, 343 Pa. 636, 23 A.2d 470 (1942); Stepp v. Renn, 184 Pa. Superior Ct. 634, 135 A.2d 794 (1957). Speaking generally, "the hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of

[ 426 Pa. Page 554]

    an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result." Green v. Independent Oil Co., supra at 484, 201 A.2d at 210 (1964).

The difficulty arises in the application of these general principles to the facts of a given case. Since each case must be decided on its own facts, the existence of all or some of the factors discussed in the above cited cases is not necessarily controlling. Namie v. DiGirolamo, 412 Pa. 589, 594, 195 A.2d 517, 519 (1963). Although the Distribution Agreement signed by Nemeth and Freihofer specifically refers to their relationship as being one of an independent contractor, this is not determinative of the matter for it is the actual practice between the parties which is crucial. See Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299 (1950); Eggelton v. Leete, 186 Pa. Superior Ct. 542, 142 A.2d 777 (1958).

Miss George points to the following factors as being indicative of an employee-employer relationship: (1) Under the Distribution Agreement, Nemeth was required to purchase from Freihofer bread and other food products made by Freihofer and to maintain the efficient distribution of said products in the territory assigned to Nemeth. (2) Nemeth could not sell products which would be in competition with Freihofer's. (3) Freihofer had the right, which it exercised, to have the name of the bakery painted on Nemeth's truck, although there was also an inscription that the truck was "owned and operated by Fred J. Nemeth." (4) Nemeth was limited to a territory defined in the agreement and in the event his relationship with Freihofer was terminated he could not for the following year directly or indirectly further the business of a competitor within said territory. (5) Nemeth sold Freihofer's products at the suggested retail prices and filled out

[ 426 Pa. Page 555]

Freihofer's slips when loading his truck each day. (6) If Nemeth was sick one of Freihofer's regular employees took over the route for that day and Freihofer retained all the profits from that day's sale. However, if Nemeth went on vacation it was his responsibility to hire his own substitute. (7) Nemeth was required to furnish Freihofer with a cash deposit of $100 as security for the "faithful performance of the agreement." (8) At the time of the accident Nemeth was wearing a Freihofer uniform and by driving the truck was actually advertising Freihofer's business. (This factor alone, however, we find to be legally insignificant for this case does not present any question of apparent authority.) Under the terms of the agreement the purchase of the uniform was ...


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