#### E. W. HODGE and Wife, BESSIE L. HODGE, v. RUTH MURPHY McGUIRE and THE FIDELITY BANK, Executors of the Estate of J. P. McGUIRE, Deceased (Formerly J. P. McGUIRE, Trading and Doing Business as McGUIRE CONSTRUCTION COMPANY), and MRS. DORIS MAY FINGLETON (Formerly MRS. DORIS MAY TURNER) v. RUTH MURPHY McGUIRE and THE FIDELITY BANK, Executors of the Estate of J. P. McGUIRE, Deceased (Formerly J. P. McGUIRE, Trading and Doing Business as McGUIRE CONSTRUCTION COMPANY).

(Filed 27 February, 1952.)

1. Master and Servant § 22d—

Where a mechanical instrumentality is rented with operator for the performance of a particular job, the question of whether the operator is the employee of the owner of the machine or the person renting it is to be determined by whether the owner retains the right to direct and control the manner in which the work shall be performed, and it is immaterial whether such right of control is actually exercised or not.

2. Same — Evidence held for jury on question of whether operator of bulldozer rented to plaintiff was employee of owner of machine.

The evidence tended to show that defendant contractor, in the course of his regular business, rented a bulldozer, with the experienced operator requested by plaintiff, to plaintiff to clear land for agricultural purposes, the operator being instructed by defendant’s manager to clear the land and do anything plaintiff “wanted him to do.” The evidence further disclosed that defendant sent no one to supervise the work, that plaintiff pointed out to the operator where he wished trees removed, but was away most of the time in his own employment, that the day before the clearing of the tract was to be completed, plaintiff showed the operator, in addition, trees which he wished removed from his yard, and that the following day, in plaintiff’s absence, the operator negligently felled a tree in the yard in such manner that it struck plaintiff’s house, causing damage. There was no evidence that plaintiff ever gave any instructions as to the mechanical operation of the bulldozer, and after the accident, defendant sent out a crane and had the tree removed from the house and thereafter the operator continued to work in the yard and removed another tree. *Held,:*The evidence considered in the light most favorable to plaintiff is sufficient to be submitted to the jury on the issue of *respondeat superior.*

Appeal by defendants from *Hatch, Special Judge,*at April Civil Term, 1951, of DURHAM.

Civil actions to recover damages for injuries to property caused by a tree falling on tlie dwelling house in which plaintiffs resided, due to the alleged negligence of the defendants’ testator, J. P. McGuire. In one action, the plaintiffs E. W. Hodge and wife, Bessie L. Hodge, as owners of the house, sue to recover for damage to the house and personal property therein. The other action is brought by their daughter, Mrs. Doris May Fingleton, to recover for personal property of hers in the house, *133alleged to have been damaged when the housetop was crushed by the falling tree. By consent the two actions were consolidated for trial.

The record discloses these background facts: At the times laid in the complaint the plaintiffs E. W. Hodge and wife, Bessie L. Hodge, owned a tract of land out in the country from the City of Durham, upon which was located a two-story frame dwelling house occupied by them as their home. They were desirous of clearing for cultivation a portion of woodland some distance from the house at a place called “up on the mountain.” The defendants’ testator, J. P. McGuire (hereinafter referred to as McGuire), was engaged in the general construction and contracting business, under the trade name of McGuire Construction Company, and owned and operated in his business a number of tractors and bulldozers, and other machinery. B. G. Proctor was the manager of the business operated by McGuire, and William Haley was an employee of McGuire and operated one of his bulldozers. In pursuance of arrangements made between the plaintiff E. W. Hodge (hereinafter referred to as Hodge) and the manager of McGuire Construction Company, the latter furnished to Hodge on the premises at his home a tractor-bulldozer, designed and equipped to remove trees and clear land. Hodge was to pay a rental of $10.00 per hour for the bulldozer, which included wages of the operator and fuel. Proctor sent Haley out to the Hodge place with a bulldozer, and “told him to go out there and clear the land and do anything that Mr. Hodge wanted him to do.” When Haley reported, he was put to work by Hodge clearing land at the place called “up on the mountain,” where some large trees were to be bulldozed out. Haley worked at this project three or four weeks and, as Hodge put it, “we cleared about 9 acres . . .” Hodge worked in Durham daily. He had no one supervising the land-clearing work, but when he came home in the evenings “he would often go where Haley was,” and Hodge further testified: “I instructed him (Haley) only the area to be cleared ... In telling him ... I told him to bulldoze the trees down to that area, ... If there were old stumps there, I would tell him to bulldoze them.”

On the afternoon before the land-clearing project “up on the mountain” was to be completed the next day, Hodge, without further negotiations with McGuire, assigned Haley some trees down in the yard at the house to be taken out next day. Hodge said: “I had gone out and looked at the trees and had shown him which ones I wanted out.” The next morning, after Hodge left home for his work in Durham, Haley started working on the project of removing the trees in the yard. While working on a big red oak that stood 40 or 50 feet from the house, it fell across the top of the house, causing the damage in suit. The evidence about whether Haley was negligent in causing the tree to fall on the house is conflicting. The details are omitted as not being pertinent to the appeal as presented.

*134The defendants’ motion for judgment of nonsuit, first made when the plaintiffs rested their case and renewed at the conclusion of all the evidence, was overruled, after which issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiffs.

From judgment entered upon the verdict, the defendants appealed, assigning errors.

*Spears <& Hall and Marshall T. Spears, Jr., for plaintiffs, appellees.*

*R. M. Gantt and Fuller, Reade, Dmstead & Fuller for defendants, appellants.*

JOHNSON, J.

The only exceptions brought forward on this appeal relate to the refusal of the trial court to allow the defendants’ motion for judgment of nonsuit. (G.S. 1-183.)

It is not necessary for us to discuss the evidence bearing on the question of negligence as to Haley, the operator of the bulldozer. This is so for the reason it seems to be conceded, and rightly so, that while the evidence was sharply conflicting on this phase of the case, nevertheless there was substantial evidence tending to support the inference that Haley was chargeable with actionable negligence. With the issue of negligence thus eliminated, the single question presented by this appeal is whether the evidence was sufficient to support the inference that Haley was the servant of McGuire, the owner of the bulldozer, at the times laid in the complaint, so as to fix McGuire with liability under application of the principle of *respondeat superior.*

The question thus presented has to do with the doctrine of lent or hired servant, — and specifically with the principles governing the fixing of liability where the general employer furnishes to a third party a mechanical instrumentality, manned by operator, and damage ensues as a result of the negligence of the operator under circumstances which raise the question of liability as between the original master and the hirer. In such cases, the usual test of liability is whether in the mechanical operation of the instrumentality the servant continues subject to the control or right of control of his general employer, or becomes subject to that of the person to whom he is hired. 57 C.J.S., Master and Servant, Section 566. This is so for the reason that the controlling characteristic of the master and servant relation is the possession by the employer of the right to direct and control the manner in which the work shall be performed, *i.e.,*the right to determine not merely the result sought, but the right to direct and control the physical methods and processes by which such result is to be accomplished. 56 C.J.S., Master and Servant, Section 2; Restatement of the taw, Agency, Sections 220 and 227. And by the *135decided weight of authority the retention of the right or power to exercise such control is quite as determinative of the relation of master and servant as is the actual exercise of control. 56 C.J.S., Master and Servant, Section 2; 57 C.J.S., Master and Servant, Section 566; Restatement of the Law, Agency, Sections 220 and 227; *Standard Oil Co. v. Anderson,*212 U.S. 215, 53 L. Ed. 480; *Bartolomeo v. Charles Bennett Contracting Co.,*245 N.Y. 66, 156 N.E. 98; *Peters v. United Studios,*98 Cal. App. 373, 277 P. 156; *Pennsylvania Smelting & Refining Co. v. Duffin,*363 Pa. 564, 70 A. 2d 270; *Driscoll v. Towle,*181 Mass. 416, 63 N.E. 922; *Little v. Hackett,*116 U.S. 366, 29 L. Ed. 652; 35 Am. Jur., Master and Servant, Sections 18 and 541; 60 C.J.S., Motor Vehicles, Section 436, pp. 1089 and 1090. See also *Leonard v. Transfer Co.,*218 N.C. 667, 12 S.E. 2d 729.

An examination of the record discloses conflicting evidence bearing on the crucial question of whether the general employer, McGuire, retained control or right of control over Ilaley, the operator of the bulldozer. It may be conceded that the evidence favorable to the defendants was sufficient to have sustained a jury-finding in their favor. However, as bearing upon the question of nonsuit, these phases of the evidence, tending to support the plaintiffs’ theory of the case, come into focus: (1) The bulldozer was owned by McGuire. (2) It was furnished by him, manned by operator. (3) Haley, the operator, was in the general employ of McGuire, and had been for 25 years, during which time he gained considerable experience in removing trees and clearing land with bulldozers. (4) McGuire was engaged in the general construction and contracting business, in which he owned and operated a number of bulldozers, and on two previous occasions his bulldozers had cleared land for Hodge under similar arrangements. (5) Proctor, manager of McGuire’s contracting business, testified that in sending Haley with the bulldozer to the Hodge farm, he told him “to go out there and clear the land and do anything that Mr. Hodge wanted him to do.” (6) The work had been under way on the Hodge farm three or four weeks when the mishap occurred. During this time Haley cleared about nine acres of land, and Hodge had no one supervising or directing the work. He himself worked in Durham daily and went back and forth mornings and evenings. While the work was in progress, sometimes he would come home early in the afternoon and go where Haley was working. He would point out to Haley where he wished trees removed and land cleared, but there is no evidence tending to show he gave Haley any directions as to the mechanical operation of the bulldozer. (7) Hodge was not present when the mishap occurred. The previous afternoon he pointed out to Haley the trees he wished removed from the yard, but he left early the next morning for his office in Durham before Haley started work. (8) After the tree fell on the *136bouse, Haley phoned the office “and Mr. McGuire sent” one of his foremen out with a crane and with it the tree was removed from the house. (9) Thereafter, Haley continued to work in the yard and removed another tree.

This evidence, when considered with the rest of the evidence in the case, is sufficient to justify these inferences : (1) that the work which was being performed by Haley at the time of the mishap was in McGuire’s regular line of business; (2) that Hodge was neither qualified to direct mechanical operations of the bulldozer, nor assumed to do so; whereas Haley was an experienced, skilled operator; and (3) that it was contemplated by the parties when the rental contract was made that the operator of the bulldozer furnished by McGuire should remain subject to his exclusive control in the performance of the work on the Hodge premises, and that the operator did in fact so remain subject to his control while the work was in progress.

It is true the record discloses that no one from the McGuire organization visited the premises in the role of supervisor while the work was in progress (with the exception of a trip by Manager Proctor to arrange for fuel). This, however, is not of controlling importance on the question of nonsuit, especially so since it was made to appear that Haley was a trained bulldozer operator, with considerable previous experience in removing trees and clearing land. In this respect the evidence is sufficient to support the inference that McGuire deemed Haley qualified to perform the work at hand without special supervision; and the fact that none was exercised by McGuire or any of his foremen does not preclude the inference that full right of control over the mechanical operation of the bulldozer by Haley still reposed in McGuire. In fact, this phase of the evidence is illustrative of the soundness of the rule that possession of the right to exercise control over the servant may be quite as determinative of the relation of master and servant as is the actual exercise of such control. Here it is readily inferable that Haley, having attained, in the service and under the tutelage of his regular master, a degree of skill that caused the master to entrust to him the operation of the bulldozer without special supervision, remained at all times while on the Hodge job under the regular employer’s power of control.

Also, we have given cpnsideration to the evidence tending to show that Hodge *spent*considerable *time on*the premises while the land-clearing project was under way, and that he pointed out to Haley trees and stumps to be removed and directed him regarding the areas to be cleared. Here, however, it is significant that Hodge gave no direction or instruction as to the mechanical operation of the bulldozer. And, by the great weight of authority, it is held that “a servant of one employer does not become the servant of another for whom the work is performed merely because *137tbe latter points out to tbe servant tbe work to be done, or supervises tbe performance thereof, or designates tbe place and time for sucb performance, or gives tbe servant signals calling bim into activity, or gives bim directions as to tbe details of tbe work and tbe manner of doing it, . . .” 57 C.J.S., Master and Servant, Section 566, pp. 287 and 288.

Tbe following cases illustrate tbe practical soundness of tbe doctrine of right of control over tbe servant, as distinguished from tbe actual exercise of sucb control by tbe master, as a criterion for establishing tbe existence of tbe relation of master and servant in fixing tort liability under tbe principle of *respondeat superior. Standard Oil Co. v. Anderson, supra; Driscoll v. Towle, supra; Pennsylvania Smelting & Refining Co. v. Duffin, supra; Peters v. United Studios, supra; Bartolomeo v. Charles Bennett Contracting Co., supra; Little v. Hackett, supra.*These cases also illustrate tbe necessity of discriminating between acts of tbe hirer which denote authoritative control over tbe servant, as distinguished from mere suggestions in respect to details which amount to no more than incidental or necessary co-operation, sucb as pointing out tbe work to be performed.

In *Standard Oil Company v. Anderson, supra*(212 U.S. 215, 53 L. Ed. 480), tbe plaintiff Anderson sued tbe oil company for personal injuries alleged to have resulted from tbe negligent operation of a steam winch used in loading a vessel. Tbe plaintiff was a longshoreman employed by a master stevedore. Tbe stevedore, under contract with tbe oil company, was loading tbe vessel for it. Tbe ship was alongside a dock belonging to tbe oil company. Cases of oil were conveyed by tbe winch from tbe dock to tbe batch by hoisting them from tbe dock to a point over tbe batch, whence they were guided and lowered into tbe bold of tbe ship, where tbe plaintiff was working, out of sight of tbe operator of tbe winch. Tbe tackle and'ropes used with tbe winch were furnished by tbe stevedore, but tbe winch and drum were owned by tbe oil company and stationed on its dock by tbe side of tbe ship. All tbe work of loading was done by tbe employees of tbe stevedore, except tbe operation of tbe winch. This was done by a winchman in tbe general employ of tbe oil company, who paid bis wages. Tbe stevedore paid tbe oil company $1.50 a thousand for this hoisting service. Tbe winchman in hoisting and lowering a load of cases received signals by an employee of tbe stevedore. Tbe plaintiff was struck by a load of cases of oil which was unexpectedly lowered into tbe bold where tbe plaintiff was working. Tbe negligence consisted in lowering tbe load of cases before receiving a signal. Tbe crucial question presented was whether tbe winchman, at tbe time tbe plaintiff was injured, was tbe servant of tbe oil company or of tbe stevedore. In tbe trial court it was found that the winchman remained tbe •servant of tbe oil company, and tbe verdict and judgment were upheld on *138appeal. It was insisted by tbe defendant that since tbe wincbman was engaged in work essential to tbe performance of tbe stevedore’s contract to load tbe vessel, be was necessarily under tbe direction and control of tbe stevedore ratber than tbe oil company, and particularly so since tbe wincbman was operating under specific signals given bim by an employee of tbe stevedore. However, in answer to tbis contention, *Mr. Justice Moody,*speaking for tbe Court, said in part: “Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or tbe necessary cooperation . . . Tbe giving of signals under tbe circumstances of tbis case was not tbe giving of orders, but of information; and tbe obedience to those signals showed cooperation rather than subordination, and it is not enough to show that there bad been a change of masters.”

Tbe case of *Driscoll v. Towle, supra*(181 Mass. 416, 63 N.E. 922), is also an early leading case which illustrates the distinction between authoritative control over a servant and merely pointing out to bim tbe work to be performed. In tbe *Driscoll case*tbe defendant was engaged in a general teaming business. He furnished a horse, wagon, and driver to tbe Boston Electric Light Company. Tbe driver, who was paid by tbe defendant, reported each morning to tbe light company and received directions from an employee of that company about what to do and where to go, but at night returned tbe horse and wagon to tbe defendant’s stable. While traveling to carry out an order received from tbe light company, tbe driver negligently injured tbe plaintiff, who brought an action against tbe owner to recover damages, alleging that tbe driver was tbe owner’s servant. It was held that there was evidence which would warrant tbe jury in finding that tbe driver continued to be defendant’s servant. There, tbe fact that tbe driver bad “exclusive management of tbe horse” seems to have been tbe determinative factor. *Holmes, C. J.,*speaking for tbe Massachusetts Court, said in part: “But tbe mere fact that a servant is sent to do work pointed out to bim by a person who has made a bargain with bis master does not make bim that person’s servant. More than that is necessary to take bim out of tbe relation established by tbe only contract which he has made and to make bim a voluntary subject of a new sovereign, — as tbe master sometimes was called in tbe old books.”

Factually distinguishable are tbe decisions of tbis Court cited by tbe defendants *(Liverman v. Cline,*212 N.C. 43, 192 S.E. 849; *Shapiro v. Winston-Salem,*212 N.C. 751, 194 S.E. 479; and *Wadford v. Gregory Chandler Co.,*213 N.C. 802, 196 S.E. 815). More nearly in point is tbe decision in *Leonard v. Transfer Co., supra*(218 N.C. 667).

Tbe fact that Hodge expressly requested McGuire to send Haley with tbe bulldozer was a circumstance for tbe jury to consider as bearing on tbe question of who bad tbe right of control over Haley. But it may not *139be treated as controlling or decisive on the question of nonsuit. *Joslin v. Grand Rapids Ice Co.,*50 Mich. 516, 15 N.W. 887.

The defendants emphasize their contention that the contractual arrangement between McGuire and Hodge contemplated that the bulldozer should be used only for ordinary land-clearing operations, and that when this work was completed and the operator moved to the house and began removing the trees from the yard as requested by Hodge, the operator then became for all intents and purposes the servant of Hodge in the performance of this particular work, which the defendants insist was out of and beyond the scope of Haley’s general employment with McGuire. We have considered this contention with care. While it may be conceded there was evidence sufficient to have sustained a jury-finding in support of the defendants’ contention, nevertheless, on this record, it also appears there was ample evidence to sustain the jury in finding that in removing the trees from the yard Haley continued to be the servant of McGuire. Of controlling importance as bearing on this phase of the case is the evidence showing (1) that when McGuire’s manager sent Haley to the Hodge premises, he told him “to go out there and clear the land and do anything that Mr. Hodge wanted him to do”; (2) that in response to-Haley’s phone message, McGuire sent one of his foremen with a crane to the Hodge premises and removed the tree from the house; and (3) that thereafter Haley resumed work in the yard and removed another tree. This evidence, we think, when considered with the rest of the relevant circumstances in the case, was sufficient to take the case to the jury and support the inference that Haley in removing the trees from the yard was acting within the scope of his authority as employee of McGuire. 57 C.J.S., Master and Servant, Sections 563 and 570; Restatement of the Law, Agency, Sections 228 and 229. See also: *Bruce v. Flying Service,*231 N.C. 181, top p. 185, 56 S.E. 2d 560; *Cole v. Atlantic Coast Line R. Co.,*211 N.C. 591, 191 S.E. 353; *Adams v. Foy,*176 N.C. 695, 97 S.E. 210; *Peters v. United Studios, supra.*

It thus appears that the court below properly submitted the case to the jury. The defendants have had their day in court, not only upon the controverted issue of whether Haley was McGuire’s servant in respect to the removal of the trees from the yard, but also on the issue of whether Hodge was eontributorily negligent. The jury answered both issues contrary to the defendants’ theories of the case in a trial in which we find

No error.