#### NATHAN L. WOOD v. W. W. MILLER, Trading as MILLER MOTOR EXPRESS.

(Filed 9 October, 1946.)

1. Automobiles § 24b—

Where the question of whether the relationship of master and servant exists between the driver of a truck and the lessee thereof depends upon the legal effect of the written lease agreement, the question is one of law.

2. Master and Servant § 1—

As a general rule the relationship of master and servant is created when the employer retains the right to control and direct the manner in which the details of the work are to be executed and what the laborer shall do as the work progresses.

3. Automobiles § 24b — Relationship of master and servant held to exist between lessee and driver of truck under terms of written lease agree- * ment.

The written trip lease agreement under which the truck in question was being operated at the time of the collision provided that the driver should remain on lessor’s pay roll and lessor be responsible for pay roll taxes and deductions and for fuel and repairs but that the sum paid by lessee was for the leasing of the truck and the services of the driver and that the lessee should assume direction and control of the leased vehicle and full responsibility to the public, shippers and consignees for its operation, and should display its name on the sides of the vehicle preceded by the words “operated by,” and pay only such tolls, charges, fees and fines as were directly attributable to the transportation of lessee’s freight. Held: Under the terms of the trip lease agreement the relationship of master and servant existed between the lessee and the operator of the truck so as to render the lessee liable for negligence in its operation.

Appeal by plaintiff from Thompson, J., at January Term, 1946, of PASQUOTANK.

Civil action to recover for personal injury allegedly sustained in collision at highway crossing in State of Virginia, between plaintiff’s automobile and-truck of one Turner under trip lease with defendant.

These facts are uncontroverted: On 27 February, 1945, the day before the collision occurred, defendant, a common carrier of freight by trucks owned and leased by him, entered into an agreement designated “Trip lease of truck,” with Dick Turner’s Motor Express, a common carrier of freight, of Norfolk, Virginia, for a single trip to transport freight by a Dodge truck, tractor and semi-trailer type, from Brooklyn, New York, to Washington, N. 0., under these pertinent provisions:

“6. During the term of this lease the leased truck shall be operated only by the driver named Savage. Such driver, and any helper furnished by the lessor, shall remain on lessor’s payroll . . .

“8. The compensation to be paid to the lessor by the lessee for the leasing of the truck and for the services of the driver named in para*568graph 6 shall be paid upon termination of this lease ... as follows: (a) $100.00 for the trip. Turner to pay all expenses ...

“10. The lessor and lessee hereby agree to all the terms, conditions and representations set forth in this lease, including those appearing on the reverse side hereof.”

Among those “Additional Terms, Conditions and Representations” are these:

“A. The lessee, upon completion of the loading of the vehicle, shall furnish lessor with documentary evidence of the weight or value of the freight loaded thereon.

“B. The lessee shall assume direction and control of the leased vehicle and full responsibility to the public, shippers, and consignees for its operation. The lessee shall also display prominently on both sides of the leased vehicle . . . the name of the lessee preceded by the words ‘operated by/ and the number of any operating certificate or permit held by the lessee ...

“C. The lessee shall pay only such tolls, ferry charges, State fees, and fines as are directly attributable to the transportation of the lessee’s freight in the leased vehicle. . . .”'

“E” and “F” (combined). “The lessor, during the time of this lease, shall be responsible for the maintenance, service and repair of the leased vehicle, and shall provide motor fuel, oil, tires, and other equipment necessary to operate the vehicle” and “for the deduction and payment of all pay roll deductions, tax withholdings, taxes, assessment, premiums, and other payments, due by reason of the payment of wages or other earnings to the driver or any helper utilized in the operation of the leased vehicle without transfer to the lessee’s pay roll.”

Plaintiff alleges in his complaint, and on trial in Superior Court offered evidence tending to show (1) that the truck was loaded and operated pursuant to the terms of said trip lease agreement on the trip from Brooklyn, N. Y., to Washington, N. C., and while being so operated came into collision with the automobile of plaintiff at the intersection of U. S. Highway 17 and U. S. Highway 13, and (2) that such collision was the result of negligence of the operator of the truck.

Plaintiff furtkér alleges in his complaint that “the defendant, under said agreement assumed direction and control of the aforesaid leased vehicle and full responsibility to the public, shippers and consignees for its operation,” and on the trial offered in evidence the trip lease agreement containing the provisions hereinabove set forth.

There was judgment as of nonsuit at close of all the evidence. Plaintiff appeals therefrom to Supreme Court, and assigns error.

J. Henry LeRoy for plaintiff, appellant.

R. Clarence Dozier and John H. Hall for defendant, appellee.

*569Winborne, J.

Tbe parties do not debate in this Court tbe question as to sufficiency of tbe evidence, offered on tbe trial below, to take tbe case to tbe jury as to actionable negligence. Tbe sole question for decision is whether there is evidence tending to show tbe relationship of master and servant between tbe driver of tbe truck covered by tbe trip lease agreement, and tbe defendant at tbe time of, and in respect to tbe collision.

Tbe relationship between tbe driver of tbe truck and tbe defendant is determinable, in tbe main, from tbe terms of tbe trip lease agreement. This is a question of law under applicable principles of law.

It is generally held that tbe relationship of master and servant is created when tbe employer retains tbe right to control and direct tbe manner in which tbe details of tbe work are to be executed and what tbe laborer shall do as tbe work progresses. See Hayes v. Elon College, 224 N. C., 11, 29 S. E. (2d), 137, where tbe authorities are assembled. “Tbe vital test is to be found in tbe fact that tbe employer has or has not retained tbe right of control or supervision over tbe contractor or employee as to tbe details,” Barnhill, J., in the Hayes case, supra.

In the light of this principle it is seen from the terms of the trip lease agreement that the defendant, as lessee of the truck, expressly assumed “direction and control of the leased vehicle and full responsibility to the public, shippers, and consignees, for its operation.” Moreover, defendant agreed to display on the truck indicia showing that it was being operated by defendant. the language is sufficiently broad to give to the defendant the full control and direction of the operation of the truck for the duration of the trip. It is true it was agreed that the name of the driver of the leased truck would be kept on the pay roll of the lessor, the owner of' the truck. But it is manifest that this was for the purpose of providing for “deduction and payment of all pay roll deductions, etc., due by reason of payment of wages or other earnings of the driver or any helper utilized in the operation of the leased vehicle, without ^be transfer to the lessee’s pay roll.” Such an arrangement does not nullify the legal effect of the action of defendant in assuming the control and direction of the operation of the truck and “responsibility to the public . . . for its operation.” See Shapiro v. Winston-Salem, 212 N. C., 751, 194 S. E., 479. Furthermore, it is set out in the trip lease agreement that the compensation to be paid by the lessee to the lessor covered “the services of the driver.”

Thus, bolding as we do, that there was error in withholding tbe case from tbe jury, other principles of law advanced by appellant need not be considered.

Tbe judgment below is

Reversed.