Byrne v. Henry A. Hitner's Sons Co.

• Decision Date: 16 May 1927
• Docket Number: 177,184,176
• Citation: 138 A. 826,290 Pa. 225
• Parties: Byrne, Appellant, v. Henry A. Hitner's Sons Co.; Byrne v. Golder (et al., Appellant)
• Court: Pennsylvania Supreme Court

138 A. 826

290 Pa. 225

Byrne, Appellant, v. Henry A. Hitner's Sons Co.; Byrne v. Golder (et al., Appellant)

Nos. 176, 177, 184

Supreme Court of Pennsylvania

May 16, 1927

Argued January 18, 1927

Appeals, Nos. 176, 177 and 184, Jan. T., 1927, by plaintiff and defendants' insurance carrier, from judgments of C.P No. 4, Phila. Co., June T., 1926, No. 22496 and 22701 affirming decision of workmen's compensation board in cases of Ellen Byrne v. Henry A. Hitner's Sons Co. and Maryland Casualty Co., insurance carrier, and Ellen Byrne v. Mandes Golder, trading as Golder Construction Co., and United States Fidelity and Guaranty Co., insurance carrier. Judgment in No. 184 reversed and judgment entered against Henry A. Hitner's Sons Co. Judgments in 176 and 177, reversed and judgments entered for defendants, Mandes Golder and United States Fidelity and Guaranty Co.

Appeals from decisions of the workmen's compensation board. Before FINLETTER, J.

The opinion of the Supreme Court states the facts.

Decisions affirmed. Plaintiff and defendants' insurance carrier appealed.

Errors assigned, inter alia, were judgments in respective cases, quoting record.

The judgments in Nos. 176 and 177, January Term, 1927, is reversed, and it is directed that judgment be entered for the defendants in those proceedings, costs in this proceeding to be paid by appellee.

Clement B. Wood, of Morgan, Lewis & Bockius, with him Henry R. Heebner, for plaintiff, appellant. -- Henry A. Hitner's Sons Co., a subcontractor under Golder Construction Co., is liable for compensation to dependents of the decedent, Michael Byrne: Lecker v. Valentine, 286 Pa. 418; Atherholdt v. Stoddart, 286 Pa. 278; Qualp v. Stewart Co., 266 Pa. 502; Tarr v. Heckla, 265 Pa. 519.

Where a principal contractor sublets part of the work which such principal contractor has undertaken to a subcontractor, although no control is reserved over the means of its accomplishment and the employment is an independent one, the principal contractor is liable to pay compensation to employees of the subcontractor under the provisions of section 302 (b) of the act: Smith v. Ins. Fund, 262 Pa. 286; Kelley v. R.R., 270 Pa. 426; Simonton v. Morton, 275 Pa. 562; Colleoni v. Del. & Hudson Co., 274 Pa. 319; McGrath v. Refining Co., 282 Pa. 265; Qualp v. Stewart Co., 266 Pa. 502; Vorbnoff v. Machine Co., 286 Pa. 199; Smith v. Tapestry Co., 285 Pa. 145; Lecker v. Valentine, 286 Pa. 418; Atherholt v. Stoddart, 286 Pa. 278.

The evidence in this case shows that the premises were either occupied by or under the control of the principal contractor, who is therefore liable to pay compensation to the claimant: Meucci v. Coal Co., 279 Pa. 184.

Frederick H. Spotts, with him Layton M. Schoch, for appellant, United States Fidelity & Guaranty Co. -- Where a principal contractor lets out work to another but reserves no control over the means of its accomplishment the employment is an independent one and the contractor is not liable to pay compensation under the provisions of the Workmen's Compensation Act: Smith v. Ins. Fund, 262 Pa. 286; Kelly v. R.R., 270 Pa. 426; Colleoni v. Del. & Hudson Co., 274 Pa. 319; Simonton v. Morton, 275 Pa. 562; McGrath v. Sugar Co., 282 Pa. 265.

Where one company loans or hires its servant to another but the servant remains subject to the direction and control of the former, the latter cannot be required to pay compensation for injuries to the servant: Tarr v. Coal & Coke Co., 265 Pa. 519; Atherholt v. Stoddart, 286 Pa. 278; Lecker v. Valentine, 286 Pa. 418; Puhlman v. Express Co., 259 Pa. 393; Crouse v. Lubin, 260 Pa. 329.

Where the evidence discloses that the premises were neither occupied by nor under the control of the principal contractor, he is not liable to pay compensation for the death of an employee of a subcontractor: Gallivan v. Wark Co., 288 Pa. 443.

Louis Wagner, R. A. Smith and W. F. Whittle, for Henry A. Hitner's Sons Co., cited: Matlack v. Chalfant, 69 Pa.Super. 49; Thatcher v. Pierce, 281 Pa. 16; Funston v. Ingenito, 282 Pa. 124.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Claimant filed three petitions under the Workmen's Compensation Act, against the Golder Construction Company, Henry A. Hitner's Sons Co., and the Reading Company. The Golder Construction Co. had a contract with the City of Philadelphia and the Reading Company to remove a bridge crossing a street, and build a new one. The first named company sublet the part of the contract to remove the old bridge, to Hitner's Sons Co., and the latter employed the Reading Company's wrecking force to assist in taking down and removing the two bridge girders. In doing this work, Byrne, an employee of the Reading Company, was crushed to death by the girder. The court below held the Golder Construction Co., principal contractor, liable under the Compensation Act.

There is no controversy as to the cause of the accident or the dependency of the widow and children. The question to be determined by the board and the court below was, Which of the parties was responsible to the dependents under the Compensation Act? It is urged by the Hitner and Golder companies that the Reading Company, in doing the work for them, was an independent contractor, solely responsible either in damages or for compensation to the injured employee's dependents. The referee, the board and the court below held that deceased was a loaned or hired employee of the Hitner Co., the subcontractor under the principle of law announced in Tarr v. Heckla, 265 Pa. 519, as applied to the Compensation Act, but that the Golder Construction Co., the general contractor should pay the compensation.

We need not discuss the evidence on which this finding was based; it was sufficient for the purpose for which it was offered, to show that the plant and men were under the Hitner's control as to the manner and method of doing the work, and that the Reading Company was not engaged in the business of hiring its men or equipment to do similar work. Although an employer may, at times, lease plant and men to do outside work, that is not enough to show engagement in the business generally. The question to be answered is, as it is stated in Scheel v. Shaw, 60 Pa.Super. 73, "Was the act done in a business in which the master is in control as a proprietor, so that he can at any time stop or continue it, and determine the way in which it shall be done, not merely in reference to the result reached, but in reference to the method of reaching the result, comprehending not only the general business which the act is intended to promote, but the particular business which calls for the act in the smallest subdivision that can be made of the business in reference to control and proprietorship"? When the act is so performed, then "where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him": Tarr v. Heckla, supra.

This brings us to the more important question: Which of the two contractors is responsible for compensation to the employee's widow? It is unnecessary to discuss or decide preliminarily the question of "premises," "control," or "independent contractor." We will assume that the Golder Construction Company was the principal contractor or employer, and permitted the entry, on the premises occupied by it and under its control, of a laborer, hired by a subcontractor for the performance on such premises of a part of the principal contractor's work that had been entrusted to such subcontractor. The relationships between the principal contractor, the subcontractor and the employee are defined in article II, sections 201, 202, and 203 and article III, section 302 (a) and (b).

From some of the oral and printed arguments, it appears there is an evident misconception of the purpose of the Workmen's Compensation Act. It is what its name implies, -- a compensation act for workmen, and not an act for the protection of subcontractors. The State's first consideration was that an employee should be paid fixed compensation for injuries sustained in the course of his employment, ordinarily by the real employer.

In Gallivan v. Wark Co., 288 Pa. 443, we reviewed the attitude of the State toward engagements covering an entire operation, or part thereof, under one contract which might entail many subsidiary contracts to be performed on the same premises. It was pointed out that the legislative course, in bringing in the principal contractor or what may be called the statutory employer, was of such an unusual nature, the legal relations thus created being unknown to common law, that in working out the purpose of the legislature, the effect must be carefully considered. Otherwise we might totally fail to attain the purpose intended, namely, that of making certain what would be doubtful situations as to compensation. The principal contractor became identified with the act through sections 203 of article II, and 302 (b) of article III. We said in Qualp v. James Stewart Co., 266 Pa. 502, 509, that "The legislature wanted to definitely fix some responsible party with the obligation of paying compensation to injured workmen, and the party selected was the first whose duty it was to assume control of the work. It selected the first in succession from the owner, believing the owner would contract with none but responsible persons. He was the first in the field, in the contracting scheme of work, the head of the endeavor, the person to whom an employee would naturally look."

This responsibility may be avoided, but, if it is, it can be...