Thomas v. Bache
| Decision Date | 15 July 1944 |
| Docket Number | 1013 |
| Citation | 38 A.2d 551,155 Pa.Super. 224 |
| Parties | Thomas v. Bache et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued March 8, 1944.
Appeals, Nos. 45 and 46, Feb. T., 1944, from judgment of C P., Luzerne Co., Oct. T., 1943, No. 165, in case of Amelia Thomas v. Carter Bache and Indemnity Insurance Company of North America.
Appeal by defendants from order of Workmen's Compensation Board.
Appeal dismissed and judgment entered for claimant and against defendants, before Valentine, P. J., Aponick and Farrell JJ., opinion by Valentine, P. J. Defendants appealed.
Ben R. Jones, Jr., with him Stanley B. Jones and Bedford, Waller, Jones & Darling, for appellants.
Thomas M. Lewis, with him Henry Greenwald, for appellee.
OPINION
This workmen's compensation case arose out of the same accident involved in Cease v. Thomas, Executrix, et al., 155 Pa.Super. 215, 38 A.2d 547, A.2d 547, decided this day, in which we upheld the Workmen's Compensation Board and the Court of Common Pleas of Luzerne County in holding that Alfred R. Cease was an employee of James E. Thomas at the time of the collapse of the scaffold, on which both were standing while at work reshingling the roof of Carter Bache's grocery store building, resulting in the serious injury of Cease and the death of Thomas.
Thomas's widow filed a claim petition alleging that her husband was an employee of Bache at the time the scaffold collapsed.
Indemnity Insurance Company of North America, insurance carrier for Bache, filed an answer, on his behalf, denying liability on two grounds: (1) That the deceased was not an employee of Bache's, nor an employee within the meaning of the Workmen's Compensation Act. (2) Because the employment, if there was any, was casual in character and not in the regular course of Bache's business.
The claim (No. 86,378) was assigned to the same referee who heard the claim of Cease v. Thomas (No. 88,777).
The first hearing of the referee in the present case was held on November 14, 1940, before any hearing in Cease v. Thomas; but the testimony was not closed until Sept. 1, 1942, nor was the referee's decision disallowing compensation filed until November 10, 1942, a year after the testimony closed in the Cease case and fourteen months after the filing of the decision of the referee finding that Cease was an employee of Thomas and allowing compensation.
The referee sustained the defendants on both grounds, holding that the work on which Thomas was engaged at the time of his death was casual in character and not in the usual course of Bache's business, and that Thomas was not an employee of Bache but an independent contractor.
Mrs. Thomas appealed to the Board, which reversed the findings of the referee on both grounds and awarded compensation.
On appeal to the common pleas, the court dismissed the appeal and affirmed the action of the board, and entered judgment accordingly against the defendant, Bache, and his insurance carrier. They took separate appeals to this court.
The legal question as to the competency of Bache to testify does not arise in this case, for he was called as a witness by the claimant, as for cross-examination, and thereby was made a fully competent witness for both sides (Act of May 23, 1887, P. L. 158, section 6); and being called by the claimant as under cross-examination, his testimony, unless it is contradicted by other evidence, is to be accepted as true (Dunmore v. Padden, 262 Pa. 436, 105 A. 559; James v. Shapiro, 135 Pa.Super. Ct. 550, 5 A.2d 815).
The parties presented at the hearing before the referee an agreed stipulation of facts of record, of which the following are material to the issue before us:
That James Thomas died on June 26, 1940 as a result of an injury by an accident sustained on June 25, 1940 while engaged in reshingling the roof of a store located at 78 West Broad Street, Nanticoke, Pa., owned by the defendant, Carter Bache . . .
That the injury resulting in the death of the decedent occurred when the scaffold upon which he was working on the said defendant's premises fell to the ground bringing the decedent with it and causing him severe head injuries from which he died some twelve hours later in the Nanticoke State Hospital . . .
That the defendant, Carter Bache, was the owner and operator of a large retail grocery and meat store in the City of Nanticoke and a branch store in the Village of Alden, of eleven farms [operated together] with approximately fifty buildings thereon, and several pieces of improved real estate in the City of Nanticoke, including three apartment buildings, a double frame dwelling (two family dwelling) and two single dwellings, which later developed pieces were occupied by tenants who paid or should pay rent.
That the decedent was a carpenter by trade.
That the decedent was engaged by the defendant, Carter Bache, to reshingle the roof on the said business place at 78 West Broad Street, Nanticoke [the defendant's grocery and meat store above mentioned] at the time of the said injury.
That upon occasions during several years preceding the accident the defendant had Mr. Thomas do certain carpentry work in and about the properties which the defendant owned and that on some of those occasions if the work required it Mr. Thomas had the aid of other carpenters whom he, Mr. Thomas, hired.
That the work of Mr. Thomas for Mr. Bache was not exclusive nor was it consecutive. By exclusive is specifically meant that Mr. Thomas worked for others and that he did not work for Mr. Bache solely.
That the decedent worked for the defendant intermittently for the last three or four years in the performance of all of the work in his line, that is Mr. Thomas's line, that the business and properties of Mr. Bache in Nanticoke required. Further, what work in his line that the farmers on the farms mentioned could not do, Mr. Thomas did. Generally over this period of time the services of Mr. Thomas were required once or twice a year on the farms.
That during the relationship on various occasions between the defendant and the decedent all materials were purchased either directly by the defendant or by Mr. Thomas, the decedent, and in the latter event charged to the defendant by the seller of the materials.
That the job started approximately two weeks before the day of the accident [but there had been only four days work done on it before June 25].
The referee who heard the case made the following findings of fact material to this issue:
1. On June 25, 1940 the decedent, James Thomas, sustained an accidental injury while reshingling the roof of the retail grocery and meat shop owned by the defendant, Carter Bache. The decedent died as a result of the injuries on June 26, 1940 . . .
6. The defendant was the owner of the retail grocery and meat store on which the decedent was working. The defendant also had a branch grocery and meat store at Alden, Penna. The defendant also owns 11 farms on which there are approximately 50 buildings of various types. At Nanticoke, Penna. the defendant owns several improved pieces of real estate consisting of three apartments.
7. Decedent was a carpenter and a building contractor. He was also employed by the City of Nanticoke as building inspector.
8. About a year prior to June 25, 1940 the decedent built a home for a third party on a contract basis. At the time the decedent was working on the defendant's property he was also doing some work on a property of the Shriner Estate.
9. The decedent hired 4 men to work with him on the job of reshingling the defendant's roof. One of these men was hired by the decedent at the direction of the defendant. These men were paid [for] each day by the defendant at the rate of $ 7 per day. Their time was turned in to the defendant by the decedent.
10. On June 14, 1940 the decedent sent Alfred Cease, one of the four men who was working under him on the defendant's building, to doa half day's work on the Shriner Estate property.
11. For several years prior to June, 1940 the decedent performed carpenter work for the defendant on various properties of the defendant. On some occasions the decedent hired other workers to assist him in such work. During this period of years the decedent also did work for others. In the performance of this work by the decedent for the defendant, the necessary materials were ordered by the decedent and charged to the defendant. The defendant paid for these materials.
12. The materials necessary for the reshingling of the defendant's roof in June, 1940 were ordered by the decedent and charged to the defendant. The defendant paid for these materials.
13. The decedent and the defendant did not expressly agree as to the amount which the decedent was to receive for his work. On the last occasion which the decedent had done work for the defendant prior to this job in June, 1940, the defendant paid the decedent at the rate of 87 1/2 cts. per hour for the time which the decedent worked.
14. We find as a fact that the defendant was not engaged in the construction of buildings.
15. The work done by the decedent and four men who worked with him was directed entirely by the decedent who also supplied the equipment with which the work was done.
16. The job of reshingling the defendant's roof was begun about two weeks prior to June 25, 1940.
17. We find as a fact that the decedent was not employed by the defendant but was engaged by the defendant as an independent contractor.
18. We find as a fact that the work being performed by the decedent for the defendant was casual and not in the regular course of business of defendant.
The board affirmed all of the findings...
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