Heite v. Vare Const. Co.

• Court: Superior Court of Pennsylvania
• Citation: 129 Pa.Super. 204,195 A. 437
• Parties: HEITE v. VARE CONST. CO. et al.
• Decision Date: 17 December 1937

195 A. 437
129 Pa.Super.204

HEITE
v.
VARE CONST. CO. et al.

Superior Court of Pennsylvania.

Dec. 17, 1937.

195 A. 438

Appeal No. 16, October term, 1937, from judgment of Court of Common Pleas No. 5, Philadelphia County, No. 3027, June term, 1936; Robert E. Lamberton, Judge.

Proceeding under the Workmen's Compensation Act by Hannah J. Heite, claimant, opposed by the Vare Construction Company, employer, and another. From a judgment reversing a decision of the Workmen's Compensation Board awarding compensation, the claimant appeals.

Judgment affirmed.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES, and RHODES, JJ.

Frank F. Truscott and William N. Trinkle, both of Philadelphia, for appellant. Philip Price, Joseph A. DeLacy, and Barnes, Biddle & Myers, all of Philadelphia, for appellee.

KELLER, President Judge.

We agree with the learned judge of the court below, Judge Lamberton, that there is no competent evidence in the record to support the finding of the Workmen's Compensation Board that the claimant's husband sustained an accident, while in the employ of the defendant, which caused injuries resulting in his death on June 25, 1933.

The decedent was a night watchman in the employ of the defendant Vare Construction Company, which was doing some construction work for the Pennsylvania Railroad Company near the bridge over the Schuylkill River at Thirty-Third Street, Philadelphia. He left his work at 7 o'clock in the morning of March 9, 1933, and arrived at his home, 1413 North Fifty-Fifth Street, about three-quarters of an hour later. Subject to the objection of the defendant's attorney, the claimant testified that when her husband arrived home he was limping and told her that at 6 o'clock that morning while he was going by a fence along the railroad property at Thirty-Third and Oxford Streets, a "two by four board" which was leaning against the fence fell on his foot and injured his toe. No one else was present when the board fell. No one testified to the presence of such a board on the premises where he was employed. There was no apparent reason or purpose for its-being there. The employee told no one of the accident until he got home. The toe was then "swollen and the nail had gone black." There is no reasonable doubt that his death occurred as the result of an injury to the toe. A gangrenous condition developed which resulted in his death. But there is no competent evidence that the injury was received...