Jack v. Belin's Estate

• Decision Date: 23 July 1942
• Docket Number: 23-1942
• Citation: 149 Pa.Super. 531,27 A.2d 455
• Parties: Jack, Appellant v. Belin's Estate et al
• Court: Pennsylvania Superior Court

27 A.2d 455

149 Pa.Super. 531

Jack, Appellant v. Belin's Estate et al

No. 23-1942

Superior Court of Pennsylvania

July 23, 1942

Argued March 3, 1942.

Appeal from judgment of C. P. Lackawanna Co., March T., 1941, No 1107, in case of Edward Jack v. Estate Paul B. Belin deceased, 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.

Appeal dismissed and judgment entered for defendant, opinion by Leach, P. J. Claimant appealed.

Error assigned was the action of the court below in dismissing claimant's exceptions.

Judgment affirmed.

Z. R Bialkowski, of Bialkowski, Bialkowski & Bialkowski, for appellant.

James W. Scanlon, for appellee.

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

OPINION

Hirt, J.

On August 15, 1939, claimant was injured when he fell from a ladder while removing whitewash from the roof of a green house where he was employed. He was permanently disabled by the injury. Both the referee and the board disallowed compensation on the ground that claimant was a domestic servant and as such was not entitled to compensation because of the Act of June 21, 1939, P. L. 565, 77 PS § 1a, which provides that the Compensation Act shall not 'apply to or in any way affect any person who at the time of injury is engaged in domestic service or agriculture.' The lower court affirmed. There is ample testimony to support the findings of fact as to the nature of claimant's employment and the conclusion that claimant was not an employee within the definition of the act.

Claimant's employment began in 1927 when he was hired by Paul B. Belin, the owner of a large country estate of about 60 acres. Belin had built a large mansion house as a home for himself and his family and had developed the grounds in keeping with it. The entire estate was operated as appurtenant to the mansion house, for their maintenance, comfort and pleasure. Paul B. Belin died in 1930. Thereafter, his widow continued to occupy the mansion house and the land, under his will, which gave her the life use of the whole property, with remainder to two sons. The land comprising the estate, thereafter, was managed by defendant testamentary trustees who paid claimant his wages. Henry Belin, a son, one of the residuary devisees lived with his family in a house which he had built, by agreement with the trustees, on the premises. The other son lived about one mile from the estate. After the death of their father the property was operated as a whole, entirely for the benefit of the widow and the families of the sons, and their servants. There were several small houses on the property, occupied by claimant and other servants, who were employed as caretakers. There were 15 acres of flower gardens, shrubbery and landscaping and a large greenhouse. Fruit and vegetables were grown. Milk and butter were produced on the premises.

Claimant considered himself a gardener and there was no change in the nature of his employment after the death of Paul B. Belin. He, however, had duties other than gardening. Every morning he delivered milk and, at times, butter and eggs or produce raised on the estate, by means of a farm truck, to the mansion house and to the homes of the sons and to the families of the workmen who lived on the estate. On occasion he hauled top soil for the gardens, groceries and other supplies from Scranton and feed for the cattle. His principal duty, however, was to operate the greenhouse where he raised plants which he later transferred to the flower beds. He also grew flowers for cutting and delivered a daily supply to the mansion house and to the sons' homes. On rare occasions, excess stock from the barn was sold, but the conduct of the estate was not a commercial enterprise in any of its phases. It was operated solely...