Garrahan v. Glen Alden Coal Company

• Court: Pennsylvania Superior Court
• Writing for the Court: Rhodes, J.
• Citation: Garrahan v. Glen Alden Coal Company, 149 Pa.Super. 1, 26 A.2d 138 (Pa. Super. Ct. 1942)
• Decision Date: 29 April 1942
• Docket Number: 17-1942
• Parties: Garrahan, Appellant, v. Glen Alden Coal Company

26 A.2d 138

149 Pa.Super. 1

Garrahan, Appellant, v. Glen Alden Coal Company

No. 17-1942

Superior Court of Pennsylvania

April 29, 1942

March 2, 1942, Argued

Appeal from judgment of C. P. Luzerne Co., Jan. T., 1941, No. 179 in case of Mrs. Stella Garrahan v. Glen Alden Coal Company.

Appeal by defendant from award of Workmen's Compensation Board.

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

Decision of board reversed and judgment entered for defendant, opinion by Farrell, J. Claimant appealed.

Errors assigned, among others, related to the action of the court below in sustaining defendant's exceptions.

Judgment affirmed.

John A Gallagher, with him Roger J. Dever, for appellant.

J. H Oliver, with him Franklin B. Gelder, for appellee.

Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Rhodes, J.

The material question in this workmen's compensation case now is the same as when it was here before (Garrahan v. Glen Alden Coal Co., 135 Pa.Super. 307, 5 A.2d 437). That question is whether "deceased was traveling in the slope instead of the manway, at the time he was injured, in violation of the positive orders of defendant, and consequently not in the course of his employment." In the original proceeding the referee awarded compensation to claimant on behalf of herself and her minor child for the death of her husband, and the award was sustained by the Workmen's Compensation Board and the court below. Because of "the equivocal character of the board's opinion and the evident conflict between its finding and that of the referee, which it affirmed," we reversed the judgment and remitted the record to the court below with instructions to transmit it to the board for further action not inconsistent with this court's opinion. Ultimately the case was remanded to the referee. When it came on for hearing neither party offered additional testimony. Consequently, it is unnecessary to restate the facts which were recited at length in our previous opinion at 135 Pa.Super. pages 309, 310.

The referee, having found that deceased's presence at the point where he was discovered was in violation of positive orders of defendant, denied compensation on the ground that deceased did not receive his fatal injury in the course of his employment. Claimant appealed to the Workmen's Compensation Board which set aside all previous findings of fact, substituted seventeen findings of its own, and awarded compensation. The decision of the board was reversed by the court below, the award in favor of the claimant was set aside, and judgment was entered for defendant. Claimant has appealed.

The fourteenth, fifteenth, sixteenth, and seventeenth findings of fact made by the board are as follows:

"Fourteenth: When the deceased was first employed in defendant's mine as a door tender he was told by his superiors not to use the slope, but to use the manway.

"Fifteenth: The deceased was later promoted from door tender to brakeman with the duty of throwing certain switches as above described. Neither at the time when he was appointed to this work nor thereafter were any instructions or orders given to him not to use the slope.

"Sixteenth: The nature of deceased's employment required that he walk up the slope to throw the first switch. At the time of the accident, deceased was proceeding from the first switch to the double switch; in proceeding up the slope to a cross cut closer to the double switch the deceased was not violating a positive order of his employer.

"Seventeenth: That the injuries sustained by deceased which caused his death were sustained by accident at a place on the operating premises of his employer where the nature of his employment permitted him to be at at the time."

From these findings and the discussion of the case which precedes them in the board's opinion, it is obvious that two factors moved that body to reverse the referee and to award compensation. One is the alleged failure of appellee to repeat the prohibition against traveling in the slope when deceased's employment changed from door tender to brakeman. The other is that because deceased habitually used the slope in order to throw the first switch, which was located near the foot thereof, his presence on the slope at the point where he was found did not constitute a violation of the order as the nature of his employment permitted him to be there. We do not think either theory is tenable.

The fifteenth finding of fact is subject to at least two objections. First, there is not a scintilla of evidence to show that no orders were given to deceased prohibiting his use of the slope at the time his employment changed from door tender to brakeman, or at times thereafter. The record is replete with testimony as to the existence of this rule -- every witness who worked in the mine acknowledged it -- and for all that appears it might have been repeated periodically. ^[1] Consequently, the board's fifteenth finding is only a conjecture, and violates the fundamental principle that findings of fact made by the compensation authorities "shall be based only upon sufficient, competent evidence to justify same": Section 422 of the Workmen's Compensation Act of 1915, as amended by the Act of June 21, 1939, P. L. 520, § 1, 77 PS § 834. Secondly, the opinion of the Workmen's Compensation Board furnishes neither reason nor rule necessitating the repetition of such orders as it found to have been issued by appellee in this case. Contrary to the board's statement that "we have no right to assume that instructions given to door tenders necessarily apply to other employees," the better reasoning would seem to be that orders once given remain valid and effective until countermanded. It is apparent from this record that the rule prohibiting employees from using the slope was of general application, and designed to minimize the danger inherent in that portion of the mine's operation. That danger did not vary with the particular job of the person using the slope, but was common to all.

Naturally there were some (such as the witness Berkowski, whose job as slopeman or planeman was to ride the trips of cars up and down the slope) whose work required them to use the slope and to whom the rule could not apply. The sixteenth and seventeenth findings of fact made by the board attempt to place deceased in that class, but the evidence fails to support them. While "acts in disregard of positive orders of the employer where the employee's duties included the doing of the act that caused the injury, or where his duties were so connected with the act that caused the injury that, as to it, he was not in the position of a stranger or trespasser," do not preclude compensation for injuries sustained therefrom, nevertheless "injuries resulting from those acts which are in direct hostility to and in defiance of positive orders of the employer concerning instrumentalities, places or things about or on which the employee has no duty to perform, and with which his employment does not connect him, are not compensable under the clause in question": Dickey v. Pittsburgh & Lake Erie R. Co., 297 Pa. 172, at page 175, 146 A. 543, at page 544. Here, under the board's own findings, ^[2] it was unnecessary for deceased to use the slope to arrive at either the single switch near the foot thereof or the double switch about 1,500 feet farther up the slope between the latter and the manway. He was found mortally...