Harris v. Meyers

• Decision Date: 21 April 1947
• Docket Number: 3190
• Citation: 160 Pa.Super. 607,52 A.2d 375
• Parties: Harris, Appellant, v. Meyers (et al., Appellant)
• Court: Pennsylvania Superior Court

52 A.2d 375

160 Pa.Super. 607

Harris, Appellant, v. Meyers (et al., Appellant)

No. 3190

Superior Court of Pennsylvania

April 21, 1947

Argued March 11, 1947.

Appeals, Nos. 37 and 38, Oct. T., 1947, from order and judgment of C. P. No. 5, Phila. Co., Sept. T., 1946, No. 1554 and of C. P. No. 4, Sept. T., 1946, No. 1434, in cases of Mrs. Clara Harris v. Elmer Meyers et al., and Same v Theodore Rippy et al.

Appeals by claimant and carrier of subcontractor from award by Workmen's Compensation Board against subcontractor and his carrier and from refusal of award against general contractor and his carrier.

Order entered affirming decision of Board and dismissing petition opinion by Finletter, P. J. Claimant, and carrier of subcontractor, respectively, appealed.

J. Webster Jones, for Coal Operators Casualty Co., appellant.

Frank R. Ambler, for claimant, appellant.

Paul H. Ferguson, for Philip Sache et al., appellees.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

HIRT, J.

Philip Sachse made extensive repairs and additions to a building in Philadelphia under a general contract with the owner. He sublet the pointing of the brickwork to Theodore Rippy. John W. Harris, claimant's husband, was Rippy's employee. On October 28, 1942, Harris, in the course of his employment, fell from a scaffold and died from injuries the following day. Claimant thereupon filed two separate claims for compensation for her husband's death from accident, one against Philip Sachse, the general contractor, and the other against Theodore Rippy, the subcontractor. Sachse defended on the ground that Rippy had secured workmen's compensation insurance as required by the written contract between them, and that this insurance was in force at the time of the accident. The two claims were consolidated and were heard together. It was conceded that claimant was entitled to recover from one defendant and his insurance carrier, or the other. The referee ultimately dismissed the claim in the proceeding against Sachse and his insurance carrier, but made an award of compensation in claimant's favor against Theodore Rippy and Coal Operators Casualty Company, as his carrier. These orders were affirmed by both the board and the lower court. Coal Operators Casualty Company has appealed from the judgment entered on the award in No. 38, and claimant, out of caution, has appealed from the refusal of her claim as to Sachse and his carrier in No. 37. The question of law, controlling in both appeals, (determining whether Sachse as statutory employer or Rippy as subcontractor is liable. Amendment of June 21, 1939, P. L. 520, § 1 [art. III, § 302(b)], 77 PS 462. Byrne v. Hitner's Sons Co., 290 Pa. 225, 138 A. 826; Capozzoli v. Stone & Webster Eng. Co., 352 Pa. 183, 42 A.2d 524) is whether there is competent evidence sufficient to support the finding that Coal Operators Casualty Company assumed liability on a binder from the date of Rippy's application for workmen's compensation insurance.

By the terms of his contract with Sachse, Rippy agreed to furnish a certificate of workmen's compensation insurance before his entry on the premises as subcontractor. In the morning of October 27, 1942, Rippy telephoned the office of William F. Miller, an insurance agent and broker in Philadelphia. He talked with Helen Malone, Miller's secretary and applied for a workmen's compensation policy. Rippy was not acceptable to any of the companies which Miller represented because of the fact that he is a Negro. Charles T. Easterby, as general agent of Coal Operators Casualty Company, was known to accept such risks and Miller as broker had placed insurance through Easterby's office on prior occasions. Miss Malone called Easterby's office, ordered a workmen's compensation policy of insurance for Rippy and gave the necessary data over the phone. Miss Malone's testimony is to the effect that the application was accepted on behalf of Easterby by the woman in his office who answered the call and that the latter also agreed that the insurance was immediately binding. Miss Malone did not identify the clerk in Easterby's office with whom she talked nor did she inquire as to the extent of the clerk's authority. Easterby identified the woman who talked with Miss Malone as his telephone girl and testified that she was wholly without authority to assume insurance liability on a binder or otherwise on his behalf. In the late afternoon of October 27, 1942, Miss Malone reported to Sachse's superintendent that an insurance binder had become effective as to Rippy and on the strength of that representation Rippy and his men were allowed on the premises the following day for the performance of the work. Miss Malone informed Rippy that she would have to have his check for $ 20.17 as a down-payment on the premium. Rippy did not deliver his check in that amount until October 29, 1942, one day after the accident and on the day when Harris died of his injuries. The check was immediately endorsed by Miller and was sent to Easterby but was returned by him to Miller.

In the proceeding before the compensation authorities, and in the appeal to the lower court, it was not disputed that Rippy's application for insurance was made to Easterby as agent of a specific principal, to-wit: Coal Operators Casualty Company. Appellant's statement of questions involved in this appeal, by necessary implication, concedes that any valid oral interim insurance contract entered into on behalf of Easterby as agent, became the obligation of Coal Operators Casualty Company. The issues were tried below on that assumption and there is no contention here that Coal Operators Casualty Company is not liable because not identified as the insurance company in which liability was assumed by Easterby's clerk.

The following findings of fact, adopted by the board, raise the legal principles which rule this appeal: "2. That the said defendant, Theodore Rippy, was covered with Workmen's Compensation Insurance by the Coal Operators Casualty Company." "12. That on October 27, 1942, one day prior to the accident, Charles Easterby and Company, general agents for the Coal Operators Casualty Company, placed a binder of Workmen's Compensation Insurance covering Theodore Rippy for any claims against him under the Workmen's Compensation Law in connection with Theodore Rippy's sub-contract with Philip Sachse, which binder was in force at the time of the accident to the claimant's decedent on October 28, 1942." "13. That the said binder was issued by telephone at the request of William F. Miller, insurance broker, in accordance with a practice in effect at the time and for many years prior thereto."

In the light of the judgment on the award, in determining whether these findings are supported by the evidence, claimant must be given the benefit of the most favorable inferences from the testimony. Dosen v. Union Collieries Co., 150 Pa.Super. 619, 29 A.2d 354. The real difficulties in this case were raised by the issues of fact. These were exclusively for the compensation authorities. And we may not substitute our judgment for that of the referee and the board nor our estimate of the credibility of witnesses, for theirs. Regardless of whether we agree with the above findings we are bound to recognize that there is competent and substantial evidence sufficient to sustain them and these findings, affirmed by the board, cannot be disturbed by us (Kasman v. Hillman C. & C. Co., 149 Pa.Super. 263, 27 A.2d 762) even though there is other competent evidence which if believed would have relieved this defendant from liability. Osterritter v. Moore-Flesher Co., 150 Pa.Super. 236, 27 A.2d 262.

A binder has been defined to be: "A written instrument used when a policy cannot be immediately issued, to evidence that the insurance coverage attaches at a specified time, and continues, . . . until the policy is issued or the risk is declined and notice thereof given": Webster's Int. Dict. 2nd Ed. Binders are commonly evidenced by binder certificates in writing or by written receipts. But in the light of general present-day practices, any definition of a binder must be revised to include oral contracts of interim insurance as well. Insurance is an indemnity contract and, except when prohibited by statute, may rest upon a parol contract without delivery of a policy to the insured. Levan v. Pottstown P. Ry. Co. et al. , 279 Pa. 381, 124 A. 89. This is the modern rule. Referring to oral and other contracts of insurance, whatever their form, intended to take effect only until a formal policy may be executed or the risk refused, our Supreme Court has said: "No principle of the common law requires that contracts of insurance, any more than other simple contracts, need be in writing, and, therefore, in the absence of charter or statutory regulations forbidding them, oral contracts of insurance are valid: Hamilton v. Ins. Co., 5 Pa. 339; Walker v. Ins. Co., 56 Me. 371; Sanborn v. Ins. Co., 16 Gray (Mass.) 448. See Levan v. Ry. Co., 279 Pa. 381, 124 A. 89; Washington, etc., Ins. Co. v. Burton, 287 U.S. 97, 77 L.Ed. 196, 53 S.Ct. 26; 32 C. J. 1113; 15 A. L. R....