Kelling v. Froemming Bros., Inc.

• Decision Date: 22 November 1926
• Docket Number: 105
• Citation: 287 Pa. 471,135 A. 129
• Parties: Kelling et al., Appellants, v. Froemming Bros., Inc
• Court: Pennsylvania Supreme Court

135 A. 129

287 Pa. 471

Kelling et al., Appellants, v. Froemming Bros., Inc

No. 105

Supreme Court of Pennsylvania

November 22, 1926

Argued September 27, 1926

Appeal, No. 105, March T., 1926, by plaintiffs, from judgment of C.P. Fayette Co., March T., 1926, No. 631, reversing decision of Workmen's Compensation Board, in case of Amanda and Richard Kelling v. Froemming Bros., Inc., and Commercial Casualty Insurance Co., insurance carrier. Reversed.

Appeal from decision of Workmen's Compensation Board. Before HUDSON, P.J., HENDERSON and MORROW, JJ.

The opinion of the Supreme Court states the facts.

Decision reversed in opinion by MORROW, J., HUDSON, P.J., dissenting. Plaintiffs appealed.

Error assigned was judgment, quoting it.

The judgment of the court below is reversed and judgment is here entered in favor of claimants for the amount of the award of the compensation board, together with costs of this appeal.

H. S Dumbald, with him John T. Silveus, for appellants. -- A presumption arises that deceased, having started in the performance of his duties in furtherance of the master's business, continued so until his return to his place of employment and until the close of the day, which he was not permitted to spend for himself in his own way, but for which the employer was paying him for doing the particular task assigned for that day: Haddock v. Steel Co., 263 Pa 120; Flucker v. Steel Co., 263 Pa. 113; Granville v. Coal Co., 76 Pa.Super. 335; Messer v. Mfg. L. & H. Co., 263 Pa. 5.

George Y. Meyer, for appellees. -- There is no evidence in the record which will support a finding that deceased at the time of his death was actually engaged in the furtherance of the duties of his employment: Maguire v. Lees & Sons, 273 Pa. 85; Cymbor v. Coal Co., 285 Pa. 440; Rotolo v. Furnace Co., 277 Pa. 70; Wolcofski v. Coal Co., 278 Pa. 84.

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

OPINION

MR. JUSTICE FRAZER:

The claim in this case is under the Workmen's Compensation Law, by the widow and son of one of defendant's employees who was injured in an automobile accident and subsequently died from the effects of his injuries. The referee's finding in favor of claimants was sustained by the compensation board. On appeal to the common pleas, however, the finding of the board was reversed, and judgment entered for defendant on the ground that sufficient proof was not presented to show decedent was acting in the course of his employment at the time the accident occurred. Claimants appealed.

Decedent's position was that of camp boss on construction work in which defendant company was engaged at Waynesboro this State, and under the terms of his employment he was required to be on duty seven days a week.

The question here presented is, was claimants' decedent, at the time of the accident which resulted in his death, actually engaged in the furtherance of the business or affairs of his employer, within the meaning of section 301, article III, of the Workmen's Compensation Act of 1915, P.L. 738. A careful reading of the testimony discloses the following facts: Kelling having been refused relief from duty on Sunday, November 9, 1924, was instructed to take an automobile belonging to defendant and drive to Rice's Landing and Uniontown, if necessary, and secure the services of three truck drivers for defendant. At the former place he was directed to see one McElhome, who was acquainted with that class of workmen. Pursuant to instructions Kelling left the camp early Sunday morning for Rice's Landing in defendant's automobile, accompanied by his young son and three other employees of defendant; not meeting with success at this stop, he drove to Uniontown and, having failed to secure drivers in that city, informed his companions they would proceed further on the National Pike, and while driving along that road southeast of Uniontown the automobile skidded and upset, inflicting injuries on Kelling which resulted in his death the following day.

While it is argued the trip was to have been taken Saturday instead of Sunday, and that the Sunday drive was presumably taken by...