Preno v. Connell Anthracite Mining Co.

• Citation: 284 F. 495
• Decision Date: 07 November 1922
• Docket Number: 1439.
• Parties: PRENO et al. v. CONNELL ANTHRACITE MINING CO.
• Court: U.S. District Court — Middle District of Pennsylvania

284 F. 495

PRENO et al. v. CONNELL ANTHRACITE MINING CO.

No. 1439.

United States District Court, M.D. Pennsylvania.

November 7, 1922

George W. Ellis, of Scranton, Pa., for plaintiffs.

R. S Houck, of Scranton, Pa., for defendant.

WITMER District Judge.

Plaintiff's statement alleges that the defendant was the owner and operator of a certain coal mine, coal or culm bank, together with a conveyor line and necessary machinery for preparing loading, and shipping coal; that defendant solicited and induced John Preno, the plaintiff's minor son, without plaintiff's knowledge or consent, to work on or about certain moving machinery known as a conveyor line, and that while so engaged in said employment he was caught in said conveyor line and killed, June 24, 1922. The usual allegations of negligence in cases of the kind follow-- that defendant did not instruct or warn said minor son of the danger of said conveyor line, that said conveyor line was not properly guarded, and that defendant did not furnish said minor son with a safe place in which to work or with safe tools.

The affidavit suggests that the plaintiff's forum is not in this court by action at law, insisting that the case is within the provisions of the Pennsylvania Workmen's Compensation Law of 1915 (P.L. 736; Pa. St. 1920, Sec. 21916 et seq.). Section 302 (a) of article 3 of the act (Pa. St. 1920, Sec. 21985) provides that in every contract of hiring made after December 31, 1915, and in every contract of hiring renewed or extended by mutual consent, expressed or implied it shall be conclusively presumed that the parties have accepted the provisions of article 3 of the act unless an express statement in writing of either party is given to the other that the provisions of article 3 of the act are not intended to apply, and unless a true copy of such statement accompanied by proof of service thereof upon the other party be filed with the bureau within 10 days and before any accident has occurred.

All employes are included in the scope of the Workmen's Compensation Law, except (1) casual laborers; (2) persons to whom materials are given out for labor in the worker's own home, or in other premises not under the control or management of the employer; (3) domestic servants; ants; and (4) agricultural workers. Article 1, Sec. 104, Act June 2, 1915 (P.L. 736; Pa. St. 1920, Sec. 21919); section 1, Act June 3, 1915 (P.L. 777; Pa.St. 1920, Sec. 21920).

The employment of the deceased son of plaintiff apparently does not fall within the excepted...