Summary
In Moyer v. Reading Co., 112 Pa. Super. 19, 21, 171 A. 105, President Judge TREXLER said: "The claimant seeking compensation for his death must prove that at the time he was struck he was engaged in furthering the business of his employer...... The inference that he was `actually engaged in the furtherance of the business or affairs of the employer' must be more than a mere conjecture.
Summary of this case from Smith v. Frederick Investment Co.Opinion
November 13, 1933.
March 3, 1934.
Workmen's compensation — Employee — Injury — Death — Engaged in furthering business of employer — Evidence — Sufficiency.
In a claim for compensation for death of a husband under the Workmen's Compensation Act, the claimant's testimony disclosed that her husband was employed by the defendant railroad company and that while at work he received by railroad mail a compensation check which belonged to a fellow employee. After his regular working hours he delivered the check to the other employee whose home was located four blocks to the north. The decedent's home was on the west side of the street while the fellow employee's home was on the east side. After the decedent had left the fellow employee's home and when within 100 feet of his own home, he was struck and fatally injured by an automobile as he attempted to cross the street from the west to the east side. There was no evidence that he was going in the direction of his home at the time of the accident and it did not appear whether he had or had not actually returned home after his visit to his fellow employee.
In such case the claimant failed to establish that her husband was injured while engaged in furthering the business of his employer and the order of the court below entering judgment for the defendant will be affirmed.
A claimant seeking compensation for the death of an employee must prove that at the time of the injury the employee was engaged in furthering the business of his employer and the inference that he was so engaged must be more than conjecture.
Appeal No. 227, October T., 1933, by claimant from judgment of C.P., Berks County, March T., 1933, No. 187, in the case of Valeria Moyer v. Reading Company, a corporation.
Before TREXLER, P.J., KELLER, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Appeal from award of compensation by Workmen's Compensation Board. Before SCHAEFFER, P.J.
The facts are stated in the opinion of the Superior Court.
The court sustained the appeal and entered judgment for the defendant. Claimant appealed.
Error assigned, among others, was the order of the court.
Charles H. Weidner, and with him Charles K. Derr and Stevens Lee, for appellant.
Thomas I. Snyder of Zieber Snyder, for appellee.
Argued November 13, 1933.
This is a compensation case. The claimant's husband was in the employ of the defendant, the Reading Company. His regular hours were from seven o'clock A.M. to 3:30 P.M. He received by railroad mail a compensation check drawn to the order of Eisenhower who was one of defendant's pensioners.
On May 14, 1931, he returned to his home about 3:30 in the afternoon and after his evening meal left his house, walked northward along the State highway, a distance of about four city blocks, left the highway and entered a path which led to the home of Eisenhower and gave him the check. He stayed about ten minutes, and then walked south along the highway toward his own home. His home was on the western side of the highway. Eisenhower's home was on the eastern side. About 9:00 P.M. as he was in the act of crossing the highway from west to east at a point about one hundred feet north of his own home, he was struck by an automobile truck, owned and operated by one Scott.
There was no one testifying concerning the defendant's progress from the time when on his return from Eisenhower, he passed a Mr. Sterner's home, three squares away from the scene of the accident and the time when he stepped upon the road and was hit. The claimant seeking compensation for his death must prove that at the time he was struck he was engaged in furthering the business of his employer. Having this in view, we have come to the conclusion that the plaintiff has not proved her case. The inference that he was "actually engaged in the furtherance of the business or affairs of the employer" must be more than a mere conjecture: Poffinberger v. Martin Co., 83 Pa. Super. 524; Stevens v. Parker, 108 Pa. Super. 520, 165 A. 665.
Notwithstanding the fact that the referee has made specific finding that decedent was killed while returning on foot to his home after having delivered the compensation check to Eisenhower, we find no testimony that would substantiate its finding except the fact that he left his home, that he went to Eisenhower's home and that he was killed somewhere between Eisenhower's home and his own home, but the time of his leaving Eisenhower's house and the time when he was killed is not definitely fixed so as to exclude the probability of his not being on his return journey. This is strengthened by the fact that there is no testimony by any of the witnesses that the decedent was going in the direction of his home. The whole tenor of their narratives is to the effect that he was about to cross the street. He was struck one hundred feet from his home, but there was not one statement throwing light on the question whether he had or had not actually returned home after his visit to Eisenhower.
As the lower court properly states, "if decedent had been on his way home from Eisenhower's, he would have been walking south, but all the testimony is to the effect that at the time of the accident he was in the act of crossing the road in an easterly direction. The testimony as to the precise time intervals is too fragmentary and uncertain to support any conclusions either way. It seems to us that the inference that decedent was at the time of the accident still upon the errand to Eisenhower's is a mere conjecture, which has no more evidence to support it than the inference that, having completed his errand, he was in the act of crossing the street to go to his garages, which were upon the eastern side of the road."
We think the case was properly decided by the court below. The judgment is affirmed.