Adams v. Brandon

• Decision Date: 01 February 1934
• Docket Number: 58-1934
• Citation: Adams v. Brandon, 111 Pa.Super. 471, 170 A. 391 (Pa. Super. Ct. 1934)
• Parties: Adams v. Brandon et al
• Court: Pennsylvania Superior Court

170 A. 391

111 Pa.Super. 471

Adams v. Brandon et al

No. 58-1934

Superior Court of Pennsylvania

February 1, 1934

Argued October 12, 1933

Appeal by American Casualty Company from decree of C. P., Venango County, April T., 1932, No. 42, in the case of Edgar Adams v H. C. Brandon and American Casualty Company.

Appeal from dismissal of petition for review of compensation agreement. Before Rimer, P. J., 18th Judicial District specially presiding.

The facts are stated in the opinion of the Superior Court.

The court dismissed the appeal. American Casualty Company appealed.

Error assigned, among others, was the decree of the court.

Affirmed.

H. E. McCamey, of Dickie, Robinson & McCamey, for appellant.

Maurice P. Breene, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

James, J.

Edgar Adams, an employee of H. C. Brandon, was accidentally injured on June 5, 1929 by being caught by a falling timber in loading a truck for defendant. On July 9, 1929, a compensation agreement was entered into between claimant, his employer and the insurance carrier whereby he was to receive compensation for total disability and no denial is made upon the record that he is still totally disabled. Since the date of the agreement the sum of $ 1,470 has been paid to claimant on behalf of the employer and insurance carrier. On February 16, 1931 the employer, by the insurance carrier, filed a petition to modify the said agreement on the ground that claimant refused to submit to the necessary treatment. An answer was filed and the petition was dismissed on April 30, 1931 by the withdrawal of the petition. On August 6, 1931 the insurance carrier filed its petition to review the compensation agreement upon the ground that, "The policy on which this agreement was entered was cancelled as of date of issue and no premium was ever received by this company from the assured under the same. This error was not discovered until now and we would request to be relieved of any further payments." An answer was filed by the claimant and testimony was taken before the referee, who dismissed the petition. An appeal was taken to the compensation board which affirmed the findings of fact, conclusions of law and disallowance of the petition by the referee. On the appeal taken to the court of common pleas the court affirmed the findings of the referee and Workmen's Compensation Board and the appeal was dismissed, from which action the present appeal lies.

A summary of the findings of fact as found by the referee and Workmen's Compensation Board from the testimony and admissions of defendant's counsel is as follows: The insurance carrier issued a policy to defendant effective June 2, 1929, three days prior to the accident, mailed the policy to their agent and charged the same against the agent; that the policy was in the possession of the agent at the time of the accident because the employer left all of his policies in her safe; that as agent of the insurance company she considered in the renewal of the policy that Mr. Brandon was covered, otherwise she would not have reported the accident; that the policy in dispute was charged by the agent specially to the employer's account and that he had not paid for his insurance for the previous year; that she requested cancellation of the policy because of non-payment of the premium and in November, 1929 the policy was cancelled, the exact date of which does not appear except from the statement of the insurance agent that it was cancelled in her November account; that no record was given to the claim department of the Casualty Company of the cancellation and their first knowledge came in July, 1931, after the bi-yearly report was made to the Pennsylvania Compensation Rating and Inspection Bureau; that the policy of insurance was not offered in evidence nor does it appear that any notice of cancellation of the policy was either served upon or delivered to the employer.

An examination of the testimony and admissions established that these findings of fact were based upon testimony before the referee and under the authority of Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256, the province of this court is not to weigh the evidence submitted to the referee and reviewed by the board. Our only inquiry is whether there was evidence competent in law to support the findings and whether...