decided: December 20, 1971.
WALDRON (ET AL., APPELLANT)
Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1967, No. 3592, in case of Robert J. Hamler v. James F. Waldron and William H. Lagar, and Ray Austin, trading as Austin Contracting Company.
Cosmos J. Reale, with him Murovich & Reale, for appellant.
John J. Repcheck, with him Mercer & Buckley, for Hamler, appellee.
William W. Guthrie, with him Wayman, Irvin, Trushel & McAuley, for Waldron, appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case.
[ 445 Pa. Page 263]
The issue raised by this appeal is whether the appellant, William H. Lagar, an excavating subcontractor, or the appellee, James F. Waldron, the general contractor in the construction of a residential building, is responsible for personal injuries sustained by Robert J. Hamler, the plaintiff, while working on the construction project.
As general contractor for the project, Waldron engaged Lagar as excavating subcontractor and Ray Austin, trading as Austin Contracting Company, as a carpentry subcontractor. Hamler was an employee of Austin, and was injured by the collapse of a foundation wall which was inadequately shored. The excavation work was performed by an employee of Lagar.
Hamler sued Waldron, the general contractor, and Lagar, the excavating contractor.*fn1 The lower court, in
[ 445 Pa. Page 264]
a non-jury trial, found in favor of plaintiff and against Lagar. A finding was made that Waldron, the general contractor, was a statutory employer as defined by the Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. § 1, and a verdict was therefore returned in its favor. Exceptions filed by Lagar were dismissed, and judgment was entered on the verdict. This appeal followed.
There is no dispute that plaintiff was in fact injured in the course of his employment, without fault on his part, and that the cause of the injury was the failure to provide shoring for the excavation where an overhang of earth existed.*fn2 The issue here is solely which of the two original defendants is liable. It is appellant's contention that he merely furnished a highlift truck and operators to Waldron, and exercised no control over the excavation; that the lift operator became the servant of the general contractor, and that any negligence in failing to provide proper shoring was that of the general contractor. Appellant relies upon Ramondo v. Ramondo, 169 Pa. Superior Ct. 102, 82 A.2d 40 (1951), and similar cases. We conclude that on this record this line of cases is not apposite, and that appellant's contention must fail.*fn3
[ 445 Pa. Page 265]
Whether the highlift operator, nominally the employee of Lagar, became the "borrowed" servant of Waldron turns on the extent of direction and control, if any, exercised on the part of Waldron as to that employee. "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 : [citations omitted]". Mature v. Angelo, 373 Pa. 593, 595, 97 A.2d 59 (1953). As had been the practice of the parties in the past, Waldron orally contracted with Lagar to have the property in question excavated. Lagar sent one of his employees with a highlift truck to perform the work. Waldron generally plotted the area where the excavating was to be done and he, or one of his employees, would daily observe the work in progress. There is no evidence that Waldron actually controlled the manner in which the work was done. "The mere fact that the person to whom a machine and its operator are supplied points out to the operator from time to time the work to be done and the place where it is to be performed does not in any way militate against the continuance of the relation of employe and employer between the operator and his original master: [citations omitted]". Mature v. Angelo, supra, at 597. We agree with the court below that the evidence shows that Lagar's employee retained control of his own excavation work. Moreover, it was Lagar who paid his operator and he who provided the equipment and its maintenance. While it appears that Lagar billed Waldron on an hourly basis,
[ 445 Pa. Page 266]
this does not establish, as Lagar contends, that he merely rented the machinery and furnished an operator for it to Waldron on an hourly basis. The facts show only a typical construction contract, not a rental agreement. Even if, however, the agreement were to be construed as one of hiring equipment and an operator, "there is a factual presumption that the operator remains in the employ of his original master" which can only be overcome by evidence "that the borrowing employer in fact assumes control of the employe's manner of performing the work." Mature v. Angelo, supra; Walton v. H. M. Kelly, Inc., 218 Pa. Superior Ct. 28, 269 A.2d 347 (1970). As above indicated, there was no such evidence in this case.
In sum, we find no error of law in the verdict and judgment of the lower court. Judgment affirmed.