O'Boyle v. Harry Seitz & Sons, 17-1932

CourtSuperior Court of Pennsylvania
Writing for the CourtGawthrop, J.
Citation105 Pa.Super. 135,160 A. 145
PartiesO'Boyle v. Harry Seitz & Sons, Appellants
Docket Number17-1932
Decision Date04 May 1932

160 A. 145

105 Pa.Super. 135

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.


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 [160 A. 146]

[105 Pa.Super. 137] 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 [105 Pa.Super. 138] 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...

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9 cases
  • Cleland v. Peters, Civil Action No. 5514.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • October 10, 1947
    ...of evidence which is presented without objection is not a nullity or void of probative force. O'Boyle v. Harry Seitz & Sons, Aplnts., 105 Pa.Super. 135, 160 A. 145; Pataky v. Allen Motor Co., Aplnt., 100 Pa. Super. 343; Harrah v. Montour R. Co., 321 Pa. 526, 184 A. 666; Barlow v. Verrill, 8......
  • Zbirowski v. John T. Lewis & Bros. Co.
    • United States
    • Superior Court of Pennsylvania
    • January 27, 1938
    ...Co. et al., 292 Pa. 509, 141 A. 481; Harrah v. Montour Railroad Co., 321 Pa. 526, 528, 184 A. 666; O'Boyle v. Harry Seitz & Sons, 105 Pa.Super. 135, 160 A. 145; Broad Street Trust Co. v. Heyl Bros. et al., 128 Pa.Super. 65, 71, 193 A. 397. See, also, Eby v. Travelers' Insurance Co., 258 Pa.......
  • Feldhut v. Latham, 5931
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 7, 1955
    ...claims were contested. A like admission by an employer was held sufficient to sustain an award in O'Boyle v. Harry Seitz & Sons, 1932, 105 Pa.Super. 135, 160 A. 145. In Amend v. Amend, 1950, 12 N.J.Super. 425, 79 A.2d 742, in compensation proceedings against the employer which were defended......
  • Ferraro v. Zurcher, A--1
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 20, 1951
    ...Joint Co., 193 App.Div. 571, 185 N.Y.S. 314 (App.Div.1920), affirmed 231 N.Y. 557, 132 N.E. 887 (1921); O'Boyle v. Harry Seitz & Sons, 105 Pa.Super. 135, 160 A. 145 The question for our decision is what percentage of permanent disability was proved. In our approach to the problem determinat......
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