Kocher v. Kocher

• Decision Date: 12 May 1930
• Docket Number: 198
• Citation: 150 A. 468,300 Pa. 206
• Parties: Kocher, Appellant, v. Kocher et al
• Court: Pennsylvania Supreme Court

150 A. 468

300 Pa. 206

Kocher, Appellant, v. Kocher et al

No. 198

Supreme Court of Pennsylvania

May 12, 1930

Argued April 14, 1930

Appeal, No. 198, Jan. T., 1930, by plaintiff, from judgment of C.P. Columbia Co., Sept. T., 1928, No. 320, for defendant on appeal from decision of workmen's compensation board awarding compensation, in case of Mildred Hanyen Kocher v. W R. Kocher Estate and Royal Indemnity Co. Reversed.

Appeal from decision of workmen's compensation board awarding compensation. Before EVANS, P.J.

The opinion of the Supreme Court states the facts.

Appeal sustained and judgment for defendant. Plaintiff appealed.

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

The judgment is reversed and the record is remitted to the court below with directions that it proceed as indicated in this opinion.

Walter H. Harris, of Knapp, O'Malley, Hill & Harris, with him Fred C. Hanyen, for appellant. -- The compensation board has found as a fact that Geraldine Kocher was the owner of the business, and that she was conducting the business under the assumed name of "W. R. Kocher Estate"; these findings of fact, supported by all of the evidence, are final and conclusive: Rodman v. Smedley, 276 Pa. 296; Kerwin v. Ry. Express, 273 Pa. 134; Stahl v Coal Co., 268 Pa. 452; Natalini v. Riefler & Sons, 286 Pa. 301.

Appellant contends that the Royal Indemnity Company is liable under the policy, because it insured the owner of the business and the employer, whether that employer be named Geraldine Kocher, "W. R. Kocher" or "W. R. Kocher Estate," all being names for the same person, and, second, because in any event the Royal Indemnity Company is estopped from denying coverage under the policy: Malley v. Indemnity Co., 297 Pa. 216; Porter v. Ins. Co., 29 Pa.Super. 75; Caldwell v. Fire Assn., 177 Pa. 492; Highlands v. Ins. Co., 177 Pa. 566; Levinton v. Ins. Co., 267 Pa. 448; Livingstone v. Ins. Co., 255 Pa. 1; Bone v. Fire Ins. Co., 261 Pa. 554; Rykill v. Ins. Co., 15 Pa. Delaware Co. R. 343.

Even though the court below was of the opinion that there was no competent evidence to support the findings of fact of the compensation board, it was without power or authority to enter judgment against appellant and in favor of appellee, Royal Indemnity Company, because appellee's exceptions to the compensation board were to the findings of fact, and therefore under the statute the court was obliged to remit the record to the compensation board for a further hearing and determination: Riley v. Steel Co., 276 Pa. 82; Kuca v. Coal Co., 268 Pa. 163.

Wm. A. Skinner, with him Kelly & Kennedy, for appellee. -- Whether a person is an employee, within the meaning of the act, is a question of law and not of fact: Callihan v. Montgomery, 272 Pa. 56; Carville v. Bornot & Co., 288 Pa. 104; Bowser v. Construction Co., 93 Pa.Super. 34.

There was not a word of evidence in this record that Mrs. Kocher was doing business under a fictitious name. There were no letterheads, invoices, bills, signs on business place or trucks, nor any evidence of any kind usually offered to prove such a fact.

Geraldine A. Kocher was one entity, and the "Estate of W. R. Kocher" was another. The Estate of W. R. Kocher was being settled in the Orphans' Court of Columbia County by duly appointed executors under letters granted by the register of wills. Proceedings against it in any court would have to be brought against the executors. The petition in this case was filed against the "estate." The executors were the only proper representatives of the estate. The petition was not filed against Geraldine A. Kocher individually, nor as doing business under the name "W. R. Kocher and/or W. R. Kocher Estate."

If the income from the coal business did not go to the estate but went to her, how can it be seriously argued that she was the "estate"? If no money of the "estate" went into the coal business and the estate received no income from it, how can it be said that the "estate" was Geraldine Kocher, when she put in all the money and received all of the income?

The law of the State makes it a misdemeanor for any person to transact a business under a fictitious name without filing a certificate.

The record in this case shows that the claimant is not entitled to recover; the claimant has proven "such a state of facts as shows she has no cause of action," therefore there was no necessity for remitting the record and the court was right in entering judgment for the defendant: Heck v. Church, 86 Pa.Super. 77; Potter v. Claar, 289 Pa. 418; Berlin v. Crawford, 86 Pa.Super. 283; Houlehan v. Pullman Co., 280 Pa. 402.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

The compensation authorities made an award in favor of plaintiff, and the defendant insurance carrier appealed to the court below, which reversed the award and entered judgment for defendant; hence this appeal by plaintiff.

W. R. Kocher, hereinafter sometimes called the decedent, owned and conducted a retail coal business. He died December 23, 1925, testate, bequeathing this business to his wife, Geraldine A. Kocher, for life, and the executors under his will, who were also the remaindermen, turned it over to her. At the time of the issuance of the insurance policy here involved, and of the accident in this case, the widow was conducting the business as her own. She employed her son Myron, who, on August 7, 1926, was killed in the course of his employment. Mildred H. Kocher, the son's widow, is the plaintiff.

W. R. Kocher carried workmen's compensation insurance with defendant company. The policy expired on March 6, 1926, after the death of the insured. A few days before the expiration of the insurance, defendant company mailed to its local agent at the place where the coal business was carried on, a renewal policy for another year. This is the contract claimed on in the present case.

The policy in question was made out, like the prior one, in the name of W. R. Kocher; but the local agent had knowledge, at the time the contract came into his hands and when he delivered it to Geraldine A. Kocher, that W. R. Kocher was dead. The agent nevertheless accepted a check in payment of the premium, which he sent to the home office of the company. This check, which had printed on it, "W. R. Kocher Estate," was collected by defendant company; the amount thus received has never been repaid. The uncontradicted testimony shows that the funds in bank out of which the check was paid belonged to the widow of decedent, and not to his estate. The check seems to have been put in evidence, however, for the purpose of showing that the insurance company must have known that W. R. Kocher was dead at the time it accepted the payment of the premium; but whether or not any one directly connected with the home office of defendant company had this knowledge, all the proofs indicate that the local agent, when he took the check for the premium and when he delivered the policy, knew both that the employer named therein was dead and that the business covered by the policy was still conducted in his name.

The position of the insurance carrier is that its policy named W. R. Kocher as the insured employer, and since, as a matter of fact, Geraldine A. Kocher, not W. R. Kocher, was the employer of Myron L. Kocher at the time of the latter's injury and death, it had no liability in the premises; but the case is not so simple. Myron L. Kocher was the manager of the business here involved, the employees of which were intended to be insured by defendant company's policy; he had occupied that position under W. R. Kocher and continued to occupy it after the death of his former employer. Of course, if there was nothing in the proofs to show that the new policy, written after W. R. Kocher's death and in his name, was, at the time of its delivery, intended as a contract with his successor in the ownership of the business, as the employer, there could be no recovery thereon in this case.

Plaintiff's position is that, after W. R. Kocher's death, the business mentioned in the policy belonged to the decedent's widow and was being conducted by her in his name, she, on occasion, using also the name of W. R. Kocher Estate; that, when the policy was delivered to the widow, it was intended by all concerned, -- including, of course, the insurance company acting through its local agent, -- to cover the employees of that business, whether it was being operated by the Estate of W. R. Kocher, deceased, or by his widow, to whom the decedent had left the business. Plaintiff contends that the insurance company had knowledge of W. R. Kocher's death when it accepted the premium and renewed the insurance; that, knowing the business still continued and was being carried on by Geraldine A. Kocher in her husband's name, -- she having assumed that name for trade purposes, -- it delivered the policy to her; therefore the contract should be read as insuring Geraldine A. Kocher, trading in the name of her deceased husband, as owner of the business and employer of plaintiff's decedent.

The insurance carrier states, in its brief, "there can be no question . . . but that Geraldine Kocher, not the Estate of W. R. Kocher, was the employer, operating this coal business"; and the court below found that, after the death of W. R. Kocher, the business was conducted by his widow Geraldine A. Kocher, but it concluded that the record contained no "legal competent evidence" which warranted "the finding that Geraldine A. Kocher was . conducting this coal business under [an] assumed name." Therefore the court held that the policy must be read as insuring W. R. Kocher, not Geraldine A. Kocher trading in his...