Gocs v. Coale's Distributing Lumber Co.
| Decision Date | 18 December 1940 |
| Docket Number | 283-1940 |
| Citation | 142 Pa.Super. 479,16 A.2d 720 |
| Parties | Gocs, Appellant, v. Coale's Distributing Lumber Co. et al |
| Court | Pennsylvania Superior Court |
Argued November 13, 1940.
Appeal from judgment of C. P. No. 5, Phila. Co., March T., 1940, No 4210, in case of Erma Gocs v. Coale's Distributing Lumber Company et al.
Appeal by claimant from decision of Workmen's Compensation Board refusing award.
The facts are stated in the opinion of the Superior Court.
Exceptions to decision of board dismissed and judgment entered for defendants, opinion by Alessandroni, J. Claimant appealed.
Errors assigned, among others, related to various excerpts from the opinion of the court below.
Judgment affirmed.
William S. Stein, for appellant.
Paul H Ferguson, with him G. Mason Owlett, for appellees.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.
Prior to March 31, 1938, the deceased husband of claimant, Anthony Gocs, was in the employ of Thomas E. Coale Coal Company, a Delaware Corporation, of which Thomas E. Coale was president. On April 1, 1938, Coale's Distributing Lumber Company, a Pennsylvania Corporation, of which Thomas E. Coale is likewise president, took over the business of the Thomas E. Coale Coal Company and Gocs was automatically transferred to the employ of the successor company. The business of these coal and lumber companies is conducted at 26th Street and Susquehanna Avenue, Philadelphia, and Gocs was employed as "manager of the coal part of the business, that is, he handled the trucks, kept the trucks in repair as a mechanic, and saw that the coal was delivered"; his wages were $ 35 per week.
Mattie M. Coale, the wife of Thomas E. Coale, but who was neither an officer nor director of either corporation, owned a farm of approximately twelve acres, known as "Crestmont Farms," and located at Torresdale. Thomas E. Coale operated the farm upon which he raised fruit, grain, turkeys and chickens. On several occasions Coale sent Gocs to the farm to repair machinery, etc., for which services he occasionally and irregularly handed him five or ten dollars. Among other things, Gocs repaired a tractor used exclusively on the farm.
On April 2, 1938, Coale sent Gocs to the farm to try out the tractor and to grade a piece of ground adjoining the chicken house preparatory to constructing an addition to that building. While engaged in this work the tractor accidentally overturned and Gocs was killed. His widow filed a claim for compensation for herself and a minor child of the decedent by a former marriage.
It was conceded of record that decedent "was in the general employ of the Thomas E. Coale Coal Company and Coale's Distributing Lumber Company," and that the only issue in the case was "whether he was in the course of [that] employment at the time he met his death." We therefore have a case in which the employee suffered a fatal accident away from the premises of his general employer. That fact, in and of itself, would not defeat claimant's right to compensation provided her husband was at the time of the accident engaged in the transaction of the business or affairs of his general employer. The applicable provision of Article III of our Workmen's Compensation Act of June 2, 1915, P. L. 736, as re-enacted and amended by the Act of June 4, 1937, P. L. 1552, 77 PS § 411, reads: "The term 'injury by an accident in the course of his employment,' as used in this article, shall .... include .... injuries sustained while the employee is engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere." It is well settled that a person may at one and the same time be in the general employ of one corporation or individual and in the special employ of another, and in such event must be dealt with for any accidental injury sustained in the particular employment as the servant of the special employer. Ordinarily, the underlying inquiry is: Who had the direction and control of the person injured at the time of the accident? Evidence as to who paid the wages of the employee may aid in ascertaining which employer is responsible for compensation, but it is not controlling. Cf. Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 109 A. 224; Sgattone v. Mulholland & Gotwals, Inc. et al., 290 Pa. 341, 138 A. 855; and Bowser v. Milliron Construction Co., 93 Pa.Super. 34.
The controlling issue in the present case is whether at the time of the accident decedent was engaged in the furtherance of the business or affairs of the Coale's Distributing Lumber Company. Upon that issue the referee made, inter alia, and the board adopted, the following findings of fact which, as our examination of the record discloses, are sustained by competent evidence:
A disallowance of compensation was entered by the referee. Upon claimant's appeal to the board the action of the referee was affirmed, subject to a slight amendment (not here important) of his conclusion of law, which, as amended, reads:
"Inasmuch as the decedent was in the employ of Thomas E. Coale individually and as an operator of the Crestmont Farms on April 2, 1938, and inasmuch as the decedent was not engaged in the regular business of the defendants, there is no liability imposed on the defendants for payment of compensation."
The court below, in an able opinion by Alessandroni, J dismissed claimant's...
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Wheatcroft v. Auritt
... ... --its [226 Pa.Super. 125] general operations. See Gocs v ... Coale's Distrib. Lumber Co., 142 Pa.Super. 479, 16 ... A.2d 720 ... ...
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City and County of Denver v. Dore
...Beaver Falls, 209 Pa.Super. 115, 224 A.2d 785 (1966); See Stafford v. Gilmer, 98 So.2d 522 (La.App.1957); Gocs v. Coale's Distributing Lumber Co., 142 Pa.Super. 479, 16 A.2d 720 (1940). Other matters to be considered are the selection and engagement of the employee, as well as the payment o......