Blake v. Wilson

• Decision Date: 31 December 1920
• Docket Number: 165
• Parties: Blake, Appellant, v. Wilson
• Court: Pennsylvania Supreme Court

112 A. 126

268 Pa. 469

Blake, Appellant, v. Wilson

No. 165

Supreme Court of Pennsylvania

December 31, 1920

Argued October 5, 1920

Appeal, No. 165, Oct. T., 1920, by plaintiff, from order of C.P. Lawrence Co., March T., 1920, No. 99, affirming decision of Workmen's Compensation Board in case of Mintie Blake claimant, v. Effa M. Wilson, written also as Effie M. Wilson. Affirmed.

Appeal from decision of Workmen's Compensation Board. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

The court affirmed the decision of the board disallowing claim. Plaintiff, widow of Garrett H. Blake, appealed.

Error assigned was order of court, quoting it.

Judgment is affirmed.

William McElwee, Jr., for appellant. -- The question as to whether or not Garrett Blake, at the time of the accident, was engaged in employment casual in character and not in the regular course of the business of his employer, is not now before this court: Baring v. Shippen, 2 Binney 154, 167; Overseers of Roxborough v. Bunn, 12 S. & R., 292, 294; Elkinton v. Fennimore, 13 Pa. 173, 176; Danley v. Danley, 179 Pa. 170; Malin v. James, 244 Pa. 336; Chartiers Creek Bridge, 235 Pa. 365.

A case cannot be tried in this court on a different theory than that shown by the pleadings and that on which it was tried in the court below: Morrett v. Fire Assn. of Phila., 265 Pa. 9.

The employment that is excluded must be both casual in character and not in the regular course of the business of the employer before it is excluded. Employment which does not have both these qualifications is not excluded. Garrett Blake's employment was in the regular course of the business of the employer, and it therefore is immaterial whether it was casual in character or otherwise.

It is the employment in which the injured man is engaged and the business of his employer that section 104 of the Workmen's Compensation Act refers to, and it does not exclude the employee who is a "jack of all trades," nor limit the purposes of the act to an employee who works his entire life at one job.

The work in which Garrett Blake was engaged at the time of the accident was not casual.

J. Norman Martin, of Martin & Martin, for appellee.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE STEWART:

On the argument of this appeal it was suggested by the court to counsel that another question than that raised by the assignments of error, which challenges the constitutionality of the act entitled, "A supplement to an act, entitled 'The Workmen's Compensation Act of 1915,'" approved June 3, 1915, P.L. 777, would seem necessarily to arise because of its fundamental character, and which had not been adverted to, namely, whether the work in which the employee was engaged when he met with the accident which resulted in his death, was casual in character and not in the regular course of the business of the employer, as required by section 104 of the Workmen's Compensation Act of 1915, P.L. 736. Inasmuch as all the facts necessary for a proper consideration of the question appeared, and since there was no occasion for further delay, counsel on each side submitted at bar a brief. In appellant's brief the consideration of the question suggested is objected to because the several counsel had agreed in writing, in order to save the printing of the testimony taken before the referee, that the only issue involved in the appeal was the constitutionality of the Act of Assembly, approved June 3, 1915, P.L. 777, entitled "A supplement to an act entitled 'The Workmen's Compensation Act of 1915,'" exempting from the provisions of the original act "domestic servants and agricultural laborers," and that the testimony taken before the referee was not material to the adjudication of the issue involved in this appeal. This objection is fully met by what was said in Canole v. Allen, 222 Pa. 156, as follows: "Where the record of the case shows departure from established rules and procedure, affecting only the rights of the parties to the action, and no specific complaint is made with respect thereto, we assume that the departure was made by and with mutual consent -- conventio legem vincit. Not so, however, when the departure manifests a clear disregard of recognized public policy, or is in violation of expressed statutory provision. Restrictions so imposed are not subject to the pleasure of the parties or the power of the courts. In such case this court will take notice of error whether assigned or not." And further, the question suggested needs for its determination nothing outside of the record before us. The one question to be considered arises in connection with a single finding of fact by the referee, and it is one of law purely. Because to our mind it is the governing question, upon the solution of which the facts of this appeal depend, we shall give it first consideration.

The appeal is from a judgment of the Court of Common Pleas of Lawrence County, to which court an appeal had been taken from an award by the Workmen's Compensation Board disallowing a claim of appellant for compensation for the injuries sustained by her husband while in the employ of the appellee, which injuries resulted in his death. From the opinion of the compensation board dismissing the claim we extract the following: "The avowed purpose of this appeal, as stated by counsel for the claimant, is for the purpose of challenging the constitutionality of the Act of June 3, 1915, P.L. 777, exempting domestic and agricultural workers from the provisions of the Workmen's Compensation Act of June 2, 1915. . . . One of the grounds of the appeal is as to the following language: 'On November 12, 1918, Garrett H. Blake was employed by the husband of Effie M. Wilson, who was running the farm, to paint this silo, which Garrett H. Blake agreed to do for about $15,' etc.

"Under the amended Compensation Act we will modify this finding of fact for the purposes of this appeal and find that Effie M. Wilson was the owner of the said farm, was operating it in her own behalf, and that her husband was her authorized agent in employing the said Garrett H. Blake to perform the said work. In other words, there is no question about the responsibility of Effie M. Wilson, as owning and operating her own farm, and liability if the exemption under consideration is unconstitutional."

No other facts are needed than those we have here. The concluding sentence states a legal proposition, the affirmance of which would negative the suggested question which we are about to consider, as will readily be seen, and may therefore be passed.

The Workmen's Compensation Act of 1915 by section 104 expressly excludes from the operation of its provisions "persons whose employment is casual in character and not in the regular course of the business of the employer." The person injured was a workman in the employ of the appellee, a married woman, the owner of the farm upon which she resided and which she operated in her own behalf. Outside the operation of her farm she was engaged in no other business activity. She had begun the construction of a silo upon this farm, the work on which had been interrupted for some time. What remained to complete it was to roof the structure and paint it. She engaged the husband of the claimant to finish the job, and it was while he was so engaged that he met with the accident that caused his death. Was the employment in which he was so engaged casual in character and not in the regular course of the business of his employer? It may be conceded that the several terms in the exemption clause above quoted are so far ambiguous as to be fairly susceptible of more than one meaning. When such uncertainty arises in legislative enactments, the duty of interpreting the meaning of the legislature, as it may be derived from the language used, devolves upon the court. The one rule which the court is allowed to apply in such case is limited to a consideration of the objects of the enactment, its purpose, and the appropriateness of the language used to the supposed purpose, in view of the legislature. There can be no two views as to the general purpose of the act in question. All will agree that its primary and general purpose was to substitute a method of accident insurance in place of common law rights and liabilities for substantially all employees, except such as are by express terms or necessary implication excluded from its operation. It corresponds, so far as general purpose is concerned, with a like act in Massachusetts, of which it has been said in the case of Young v. Duncan, 218 Mass. 346, "It was a humanitarian measure, enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the employer's liability act, had failed to accomplish that measure of protection against injuries and of relief in case of accident, which it was believed should be afforded to the workman. It was not made compulsory in its application but inducements were held out to facilitate its voluntary acceptance by both employers and employees." It will be helpful perhaps to keep in mind this general purpose of the enactment when we come to consider the special purposes of the act in exempting certain employees from its operation, and the language employed in their designation.

We pass to the question, -- Is the language, used in denoting exceptions to the act, appropriate to the supposed purpose the legislature had in view? A primary and general purpose of the act was, as we have said, to afford a workman a measure of...