O'Boyle v. Harry Seitz & Sons

• Decision Date: 04 May 1932
• Docket Number: 17-1932
• Parties: O'Boyle v. Harry Seitz & Sons, Appellants
• Court: Pennsylvania Superior Court

160 A. 145

105 Pa.Super. 135

O'Boyle v. Harry Seitz & Sons, Appellants

No. 17-1932

Superior Court of Pennsylvania

May 4, 1932

Argued March 7, 1932

Appeal by defendant from judgment of C. P., Lackawanna County, March T., 1931, No. 1354, in the case of Gertrude E. O'Boyle v Harry Seitz & Sons.

Appeal from award for claimant by Workmen's Compensation Board. Before Leach, J.

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

The court dismissed the appeal and affirmed the award. Defendant appealed.

Error assigned, among others, was the judgment entered for the claimant.

Reversed.

Edward J. Kelly, and with him William J. Fitzgerald, Clarence Balentine and John P. Kelly, for appellants.

Gomer W. Morgan, for appellee.

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

OPINION

Gawthrop, J.

On April 5, 1930, Roy J. O'Boyle, an employee of Harry Seitz & Sons, defendants, sustained accidental injuries from which he died April 10, 1930. August 16, 1930, his widow filed with the Workmen's Compensation Board a petition for compensation, which was drawn on a form printed by the board for use in cases of disability. This petition alleged, inter alia, that the husband sustained a fatal injury on premises occupied by John Minich as a result of falling from a tree and landing on a picket fence while he was assisting Minich "in hanging aerial as per defendants' instructions." August 20, 1930, notice of the filing of the petition and a copy thereof was served upon defendants. The latter did not file an answer, but their insurance carrier filed an answer for them August 28, 1930. The answer averred, inter alia, that "claimant was not injured while in the course of his employment," and that "he was doing some work after working hours and was not requested by defendant to do same." In the meantime on August 23, 1930, a second petition was filed by the widow in behalf of herself and two children, upon a form printed for use in cases of a fatal accident to an employee. This petition contained substantially the same allegations as to the cause and circumstances of death as were averred in the first petition. It was not served on defendants and they filed no answer to it. When the case came on for hearing before the referee defendants were not represented by counsel, but Elmer J. White, superintendent of their insurance carrier, appeared for them and conducted the hearing in their behalf. Claimant offered in evidence, without objection, the averments of the second petition, that "Roy J. O'Boyle died . . . . as the result of an accident occurring in the course of his employment," and that at the time of the accident he was "assisting John Minich hanging aerial as per defendants' instructions." In addition to this evidence the claimant testified that she met one of defendants at the hospital soon after her husband had been injured, and that he told her that she need not worry, that "everything would be all right and that the compensation would take care of me and him no matter how long he was in the hospital." She and her brother and her mother testified, without objection, that Minich told them soon after the accident that Chris. Seitz, one of the employers, sent the deceased and himself to install the aerial. The mother of claimant testified also that just after the deceased had been taken to the hospital she heard Chris. Seitz talking over the telephone to his home and that he said that "one of his men was hurt while at work;" and that she also heard Seitz state to a representative of a newspaper that the deceased was employed by him and that "it was in the course of his work that he fell." C. F. Seitz testified that he had no knowledge that O'Boyle and Minich were hanging an aerial on the afternoon of the accident; that they "were off that afternoon" and had no work to do until eleven o'clock P. M., when they were to return to work. Minich testified that he and O'Boyle "were not working for appellants in putting up the aerial," and that he did not tell Mrs. O'Boyle that her husband was helping to install the aerial at the direction of Chris. Seitz. The referee found the injury to have been incurred during the course of employment and awarded compensation. That was affirmed by the board and the court below. On this appeal by the employers two questions are raised: first, whether or not there was any competent evidence to support the finding of the referee that the deceased was in the course of his employment when he was fatally injured; and second, whether an award can be made "based on the allegations in a petition for compensation, which petition had never been served upon the defendants."

It is urged by counsel for appellants that the only evidence that the accident occurred to the deceased while he was in the course of his employment was "Mrs. O'Boyle's hearsay evidence as to what she says Seitz and Minich told her." This contention is not supported by the record. The statements testified to have been made by Seitz to claimant and others to the effect that "the compensation" would take care of claimant and that the deceased "was hurt while at work" and that "it was in the course of his work that he fell," were not hearsay but admissions, which not only were inconsistent with the position taken later by the witness that the deceased was not in the course of his employment when he was injured, but would warrant a finding that the deceased was in the course of his employment when the accident occurred. Therefore, the case is not one in which the material findings are based on hearsay alone. While it is true that even in compensation cases the material findings may not be based on hearsay alone, "where there is other evidence to establish the material facts,...