Opinion
September 26, 1938.
October 28, 1938.
Workmen's compensation — Employee or independent contractor — Evidence — Findings of fact — Conclusiveness — Judgment — Amount — Form.
1. A finding by the Workmen's Compensation Board that the claimant was a workman in the employ of defendant rather than an independent contractor, supported by competent evidence, is conclusive upon the courts.
2. Where the judgment in the court below exceeded the amount allowed by the Workmen's Compensation Act, it was ordered that it be reduced by the amount of the excess, and that judgment should be entered in the appropriate form.
Appeal, No. 70, April T., 1939, from judgment of C.P. Cambria Co., June T., 1938, No. 147, in case of James Cimo v. State Workmen's Insurance Fund and Red Top Coal Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, PARKER and RHODES, JJ. Judgment, as modified, affirmed.
Appeal from award of Workmen's Compensation Board.
The facts are stated in the opinion of the Superior Court.
Appeal dismissed and judgment entered for claimant. Before McCANN, P.J., McKENRICK and GREER, J., opinion by McKENRICK, J. Defendants appealed.
Error assigned was final decree.
S.H. Torchia, with him Guy K. Bard, Attorney General, John T.J. Brennan, J.S. LaVictoire and William E. Boggs, for appellants.
H.A. Englehart, for appellee.
Argued September 26, 1938.
When this case was here before — 127 Pa. Super. 49, 193 A. 283 — we reversed the judgment because we were of opinion that the evidence in the record did not support a finding that the claimant, at the time he received his injury, was an employee of the Red Top Coal Company rather than an independent contractor working for it. The general expressions used by the claimant in his testimony were conclusions rather than statements of facts. We ordered the record remitted to the board to take further testimony as to the circumstances attending his engagement to haul coal for the coal company, from which it might be determined what his status really was at the time of the accident.
Additional testimony was taken along the lines suggested in our opinion. From this the board has found that the claimant was a workman in the employ of the coal company rather than an independent contractor. There is evidence to support its finding. See McCall v. Bell Telephone Co., 79 Pa. Super. 505; Flaharty v. Trout, 290 Pa. 315, 138 A. 863. That being the case we are concluded by its finding of fact.
The judgment in the court below exceeds the maximum amount allowed by the Workmen's Compensation Act ($6500, sec. 306a, as in force at the time of the injury) by five dollars. It will be reduced by that amount; and judgment should be entered in the appropriate form directed in Graham v. Hillman Coal Coke Co., 122 Pa. Super. 579, 586, 587, 186 A. 400.
As so modified the judgment is affirmed.