Hauger v. Walker Co.

• Decision Date: 23 May 1923
• Docket Number: 74
• Citation: 277 Pa. 506,121 A. 200
• Parties: Hauger v. Walker Co. et al., Appellants
• Court: Pennsylvania Supreme Court

121 A. 200

277 Pa. 506

Hauger v. Walker Co. et al., Appellants

No. 74

Supreme Court of Pennsylvania

May 23, 1923

Argued April 30, 1923

Appeal, No. 74, Oct. T., 1923, by defendants, from judgment of C.P. Somerset Co., Dec. T., 1922, No. 472, affirming decision of Workmen's Compensation Board, in case of Elsie Pearl Hauger v. H.W. Walker Co., and Continental Casualty Co., insurance carrier. Affirmed.

Appeal from decision of Workmen's Compensation Board affirming award of referee. Before BERKEY, P.J.

The opinion of the Supreme Court states the facts.

Decision affirmed. Defendants appealed.

Error assigned, inter alia, was judgment, quoting it.

The judgment of the court below is affirmed.

J. Roy Dickie, with him H. F. Yost, for appellants. -- Deceased was not employed in the regular course of business: Marsh v Groner, 258 Pa. 473; Callihan v. Montgomery, 272 Pa. 56; Blake v. Wilson, 268 Pa. 468; McCall v. Tel. Co., 79 Pa.Super. 505.

Norman T. Boose, with him B. B. Boose, for appellee, cited: Tarr v. Coal Co., 265 Pa. 519; Callihan v Montgomery, 272 Pa. 56; McCall v. Tel. Co., 79 Pa.Super. 505.

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

OPINION

MR. JUSTICE SIMPSON:

The H.W. Walker Company, defendant, and its insurance carrier, appeal from a judgment of the court below affirming an award by the Workmen's Compensation Board to plaintiff, as the widow of William I. Hauger. There is no dispute in this court regarding the few controlling facts, and the only legal question is whether decedent was killed while "in the regular course of the business" of defendant.

The latter was a manufacturer of ice-cream and other dairy products, and had, as its factory foreman, one Marlin G. Miller, who, as appellants admit, "was charged with the duty of keeping the plant in operation," making "such small repairs as he could by himself, or, with the assistance of other men in the regular employ of the company, but when there was some major job of repairing to be done, he, as factory foreman, called in" decedent, who was an expert machinist, to assist in doing this character of work. While engaged in the performance of his duty under such an employment, decedent was killed in plaintiff's place of business.

Section 104 of the Workmen's Compensation Act of 1915, P.L. 736 provides that "The term 'employe' as used in this act is declared to be synonymous with servant, and includes all natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer," etc. It will be noticed that the last clause of this section is in form conjunctive, and hence inapplicable unless the employment is not only casual, as this was, but also "not in the...