Falls v. Tennessee Furniture Co.

Decision Date10 July 1936
Docket Number16-1936
Citation186 A. 272,122 Pa.Super. 550
PartiesFalls v. Tennessee Furniture Company (et al., Appellants)
CourtPennsylvania Superior Court

Argued March 12, 1936

Appeal by defendants, from judgment of C. P. No. 4, Phila. Co., Dec T., 1934, No. 5880, in case of Mrs. Mary Falls v. Tennessee Furniture Company and Norwich Union Indemnity Company.

Appeal from award of Workmen's Compensation Board.

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

Appeal dismissed and judgment entered for claimant. Defendants appealed.

Error assigned, among others, was dismissal of exceptions to findings and conclusions of board.

Judgment affirmed.

J Webster Jones, for appellant.

Geoffrey J. Cunniff, with him Philip Dorfman, for appellee.

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

OPINION

Rhodes, J.

This is an appeal by the Tennessee Furniture Company and its insurance carrier from a judgment entered by the court below upon an award of compensation to the dependent widow and children of the deceased employee, Abner Falls.

The award was based on a finding by the referee that the deceased died as the result of an accident sustained in the course of his employment. This was affirmed by the board and the lower court.

The questions raised on this appeal may be stated as follows: (1) Is there sufficient legally competent evidence to support the findings of fact and conclusion that deceased suffered an injury by accident within the meaning of the Workmen's Compensation Act? (2) If so, are appellants liable?

We shall first dispose of the second question. Appellants present the argument that there is no competent evidence to support the board's finding that the Tennessee Furniture Company was the employer of the deceased, and that therefore the appellant insurance carrier is not liable for the payment of compensation on its behalf. In view of the facts this requires but brief consideration on our part. The record shows that claimant filed her petition for compensation on May 11, 1933. The petition set forth that the deceased was employed at the time of the accident by the "Tennessee Furniture Co., 108 N. 2nd Street." Notice of the filing of the claim petition was given to the defendant-employer on May 17, 1933. The insurance carrier intervened, and, on May 27, 1933, filed an answer to the claim petition in which it admitted "the employment of the deceased and the dependency of the wife and the children named in the petition, together with the weekly wage rate, . . . ." At the hearing before the referee, the referee stated before the taking of any testimony: "Wages, employment and dependency admitted. . . . The only question before us is whether or not there was a compensable accident. It is admitted the deceased died of a perforated ulcer." Both sides were represented by counsel, and testimony was taken at two hearings. At the second hearing, Leo A. Wilson, a witness who was called for the defense, testified on direct examination: "Q. Mr. Wilson, you have been identified as the shipping clerk, or in charge of the shipments, and directly in charge of Falls during his employment with the Tennessee Furniture Company, that is correct, is it not? A. That's right. . . . Q. And your records and your recollection indicate a continuous employment since December of 1926? A. Yes, sir."

Considering their admissions and their own testimony, we see no merit in this contention of the appellants. No question was raised as to the deceased's being employed by some other individual or corporation until over a year after the accident. The contention is based on a rather complicated relationship between the Tennessee Furniture Company and its agency in Philadelphia. Under the facts, the Tennessee Furniture Company was properly found to be the employer of the deceased, and the intervening defendant the insurance carrier.

The testimony shows that Falls had been employed for seven years as a chauffeur and truck driver by the Tennessee Furniture Company. His duties included the delivery of refrigerators, gas ranges, and similar articles. On April 22, 1933, about 1:10 or 1:20 p. m., he delivered two refrigerators to the Strawbridge & Clothier warehouse at Ninth and Poplar Streets, Philadelphia; one weighing 129 pounds and the other 180 pounds. He unloaded both without any assistance, and no one was present at the time. The receiving clerk at the warehouse testified that, after Falls had unloaded the refrigerators and placed them on the platform, Falls brought in the receipt to be signed; that he did not see any accident; and that Falls made no complaint to him about being hurt. From there Falls drove about twenty blocks west to 2829 Poplar Street, the home of his brother-in-law, Jerome Sweeney. He arrived about 1:30 p. m. Sweeney testified that Falls came out in the yard, leaned against the fence, with his hand above his forehead, holding his side, and tried to vomit. He declined to eat. A few minutes thereafter he and Sweeney obtained some lumber and drove together to Falls' home in Clementon, N. J., arriving there about 3 p. m. During this trip Falls was in distress. Upon arriving at his home, he entered the house, still holding his stomach and showing evidence of illness. He was unable to eat and went to bed. His condition continued to grow worse; and the next day Dr. Westcott was called, and found him vomiting and suffering with a steady pain in the epigastric region. He was taken to the hospital, and died, on April 25th, of generalized peritonitis resulting from the rupture of a gastric ulcer.

Subject to objection, Sweeney testified that at the time Falls called at his house, which was about twenty minutes after leaving the warehouse of Strawbridge & Clothier, he said: "I just hurt myself, I was lifting a box about twenty minutes ago and I felt something give in my stomach, . . . ." Likewise, subject to objection, Dr. Westcott testified that, on the day following the accident, the deceased had told him that "he had that pain since he lifted a heavy icebox the day before, but it was getting worse at that time."

Appellants' main contention is that there is no competent evidence to support the board's fourth finding of fact, which reads...

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