McGrath v. Pennsylvania Sugar Co.

• Decision Date: 05 January 1925
• Docket Number: 140
• Citation: 127 A. 780,282 Pa. 265
• Parties: McGrath v. Pennsylvania Sugar Co., Appellant
• Court: Pennsylvania Supreme Court

127 A. 780

282 Pa. 265

McGrath v. Pennsylvania Sugar Co., Appellant

No. 140

Supreme Court of Pennsylvania

January 5, 1925

Argued December 3, 1924

Appeal, No. 140, Jan. T., 1925, by defendant, from judgment of C.P. No. 2, Phila. Co., March T., 1922, No. 751, on verdict for plaintiff, in case of Frank W. McGrath v Pennsylvania Sugar Company. Reversed.

Trespass for personal injuries. Before BARNETT, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

The court charged in part as follows:

["There is some other evidence in the case which may throw light on this question of agency and authority. Haggerty concededly was Davey's superior. Haggerty is said to have come upon the scene within a minute, or two minutes one witness says after the accident, to have inquired who told the men at work at the top of the stack to work at the bottom of the stack instead of the top, and when told that Davey had so told them, said that Davey ought to have known better and that the men should go back to the top of the stack. There was an apparent admission by another employee of the company that Davey had authority to order these men, or at least that he might so consider such action upon Haggerty's part with respect to the question as to whether or not Davey had the authority."] (11)

Verdict for plaintiff for $19,808, on which judgment was entered for $14,000. Defendant appealed.

Errors assigned were various rulings and instructions, and (11) portion of charge as above, quoting record.

The judgment is reversed and a venire facias de novo is awarded.

Richard A. Smith, for appellant. -- Plaintiff's right of recovery is governed exclusively by the Workmen's Compensation Act: Callihan v. Montgomery, 272 Pa. 56; Blake v. Wilson, 268 Pa. 469; Hauger v. Walker, 277 Pa. 506; Qualp v. Stewart, 266 Pa. 502; Kirk v. Showell, 276 Pa. 587; Tarr v. Coal & Coke Co., 265 Pa. 519.

The case is ruled by Qualp v. Stewart Co., 266 Pa. 502.

In order to recover in this case, plaintiff must not only establish the negligent piling of the sugar which caused it to fall, but also that he was performing his work at a place where it was dangerous and in a dangerous manner under direction of defendant: Towanda Coal Co. v. Heeman, 86 Pa. 418; Urban v. Focht, 231 Pa. 623; Rugart v. Baking Co., 277 Pa. 408.

James F. Masterson, for appellee. -- The Workmen's Compensation Act has no relevancy to this case, since plaintiff was an employee of S.C. Loveland & Co., Inc., and not of defendant.

Stevedoring was not a part of defendant's regular business and therefore plaintiff could not be construed to be an employee of defendant under section 203 of the Workmen's Compensation Act.

Since defendant never did any of its own stevedoring work it certainly was not a part of its regular or usual business: Hogan v. Fruit Co., 266 Pa. 266; Strunk v. Keller, 75 Pa.Super. 462; Simonton v. Morton, 275 Pa. 562.

In the case at bar, it is apparent that either or both of the acts of negligence complained of could have caused the injury, and either or both of them might and ought to have been foreseen by the wrongdoer as likely to cause the result complained of.

Defendant was bound by the negligent direction given by its assistant foreman Davey to plaintiff: McClung v. Dearborne, 134 Pa. 396; Pender v. Raggs, 178 Pa. 337; Newingham v. Blair, 232 Pa. 511; Guinney v. Hand, 153 Pa. 404; Dunne v. R.R., 249 Pa. 76; Stidfole v. Ry., 261 Pa. 445; Petrowski v. Ry., 263 Pa. 531.

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

OPINION

MR. JUSTICE SADLER:

The Pennsylvania Sugar Company, defendant, is engaged in the business of refining sugar for others who forward the raw product to it. A pier is used in connection with the plant where the finished and unfinished material is handled, under the general supervision of defendant's employees. Stevedores are obtained under contract with firms which make a business of supplying this character of labor, and the actual movements of material to and from the dock are carried on by them. On the day of the accident, which gave rise to the present litigation, Loveland & Co. furnished, under agreement, men for this work, being paid the amount of the wages earned by their employees, plus ten per cent. One of the men sent upon the wharf by Kennedy, the acting foreman for Loveland & Co., was the plaintiff, McGrath. He was told to work upon the top of a large stack of bags filled with sugar, his duty being to put them in a swing which carried them forward, ultimately being loaded by others on a ship anchored in the river. While so engaged, plaintiff contended he was directed by Davey, an assistant foreman of the defendant, to change his position, and continue his labor on the floor, handling the sugar from the side of the stack. Soon after beginning work there, the bags became loosened and fell, causing him serious injury. An action to recover damages was brought, and a verdict for the plaintiff, reduced by the court to $14,000, was rendered. From the judgment entered thereon defendant has appealed.

It was insisted below, and the same claim is made here, that the plaintiff must be compensated for his loss, if at all, through the medium of the Workmen's Compensation Act. Section 203, article 11, and 302 (b), article 111, fix the liability of the employer who permits the laborer, or an assistant hired by the employee, or contractor, to enter upon his premises. To impose responsibility on the sugar company, it would have been necessary for the claimant to show that he was engaged in the "employer's regular business": Haugher v. Walker Co., 277 Pa. 506; Callihan v. Montgomery, 272 Pa. 56, 72; McCall v. Bell Telephone Co., 79 Pa.Super. 505. If so employed, then compensation may be awarded, though the employee is hired by one who lent his service to another, in the course of whose work the accident occurred: Tarr v. Hecla Coal & Coke Co., 265 Pa. 519. Defendant, a refiner of sugar, controlled the wharf where the raw product was received, and from which the manufactured material was removed, but had no part, at any time, in the actual handling of it on the pier, or loading and unloading in the river. This service was always performed by the employees of a stevedoring firm, in this case Loveland & Company. The facts disclosed would not justify a finding that the labor performed was within the line of the "regular business" of the defendant, and hence did not come within the sections of the act above referred to. Nor is the situation altered by article I, section 105, which qualifies the previous provision in directing that the term "contractor," as there used, shall not include one engaged in "an independent business, other than that of supplying laborers and assistants, in which he serves persons other than the employer in whose service the accident occurs."

In discussing this section, as affecting those which precede, it was said in Qualp v. Stewart Co., 266 Pa. 502, 507: "This relation of employer to those employed about the premises includes only those whose work is a part of that embraced within the terms of the employer's contract with the owner. The work of a contractor, on the same premises, in furtherance of the owner's general plan, on the same structure or enterprise, performing another and different contract with the owner, is, as to the person under consideration, the work of an independent contractor under the law, and his employees or those under him must look to him for compensation. Each is separate and distinct, operating within his own sphere, though engaged on the same general work." Loveland & Company was engaged in the business of stevedoring not only for defendant but also for others. This occupation is recognized as an independent one: 36 Cyc. 1276; Rankin v. Merchants & Miners Trans. Co., 73 Ga. 229. Such employments are necessary to the general transportation of a cargo: The Senator, 21 F. 191. "Formerly, the work was done by the ship's crew, but, owing to the exigencies of increasing commerce, and the demand for rapidity and special skill, it has become a specialized service" (Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 58 L. ed. 1208), the employees coming within the scope of state compensation laws, dependent upon whether engaged, at the time of injury, about the pier or wharf (State Industrial Commission v. Nordenholt Corp., 259 U.S. 263, 66 L. ed. 933), or around the ship or vessel: State v. Dawson & Co., 264 U.S. 219, 68 L. ed. 339. The stevedoring company, having entire charge of the work to be performed, was an independent contractor (26 Cyc. 1548), and came within the definition of such, as set forth in our decisions (Simonton v. Morton, 275 Pa. 562; Swartz v. Hanover Borough, 278 Pa. 134), and the plaintiff was its employee.

An effort was made to alter the situation thus presented by producing a contract between the defendant and Atkins &amp Company, wherein the former agreed to refine the sugar of the latter, and thus fix the sugar company as the contractor, and the stevedoring company as a subcontractor, it being argued that, therefore, the Compensation Act would apply, under article I, section 105, as interpreted in Qualp v. Stewart Co., supra. There is no need to discuss the question of the admissibility of this agreement under the pleadings, as has been done by counsel in their briefs. It was offered, but we are not convinced that, even if properly received, it had the effect insisted upon by defendant. The contract merely provided for the delivery of raw product to the sugar company, which latter was to manufacture, refine and hold, subject to the call of the purchaser. No obligation to assist in transportation to or from the vessel of ...