Opinion
March 8, 1933.
April 17, 1933.
Workmen's Compensation — Employee — Death — Compensation agreement — Petition to review — Evidence — Employee charged with duties of employer.
On a petition to review a compensation agreement, it appeared that the claimant's husband was employed by a street-cleaning contractor and that while on his way to meet his employer he was struck by a hit-and-run motor car driver and died shortly thereafter. The employer's insurance carrier and the claimant entered into a compensation agreement. About a month later the insurance carrier petitioned for a review of the agreement alleging that it was executed by mistake of law and of fact and that the decedent was not in the course of his employment when he met with the fatal accident. The employer testified that the decedent was usually engaged in another section of the city but that the evening before the accident he had instructed the decedent to meet him at another location before going to the usual place of employment. He further testified that the decedent's pay started from the time he left his home.
In such case where the decedent was injured while carrying out the instructions of his employer, his dependents were entitled to compensation and the order of the court below entering a judgment for the defendant will be reversed.
An injury happening to an employee is compensable if, at the time of such injury, he is charged with any duties of his employer.
Appeal No. 21, February T., 1933, by claimant from judgment of C.P., Luzerne County, March T., 1932, No. 547, in the case of Mrs. Anna Martin v. State Workmen's Insurance Fund et al.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Reversed.
Appeal from decision of the Workmen's Compensation Board dismissing petition to review a compensation agreement. Before VALENTINE, J.
The facts are stated in the opinion of the Superior Court.
The court sustained the appeal and entered a judgment for the defendant. Claimant appealed. Error assigned, among others, was the judgment of the court.
Roger J. Dever, for appellant.
Ralph H. Behney, and with him R. Lawrence Coughlin, A.K. Edwards, Deputy Attorney General, and William A. Schnader, Attorney General, for appellee.
Argued March 8, 1933.
Workmen's compensation case. Andrew Martin, alias Meroy, met with a fatal accident February 20, 1931, between 5:30 and 6 o'clock in the morning, on a public road in the Borough of Kingston by being struck with an automobile.
A compensation agreement was entered into by his widow, Mrs. Anna Martin and the State Workmen's Insurance Fund, the insurance carrier of Owen A. Murray and W.D. Curnow, employers, providing for the payment of compensation to the widow and three minor children. The agreement, dated March 9, 1931, was approved by the Workmen's Compensation Board May 5, 1931. On April 14, 1931, the State Workmen's Insurance Fund petitioned the Workmen's Compensation Board to review said agreement on the ground that the agreement was executed by mistake of law and of fact, and further alleging that the said Andrew Martin was not in the course of his employment when he met with the fatal accident. The widow filed her answer denying the allegations in the petition to review. The referee to whom the petition for review had been referred dismissed the same after hearing of testimony and held that the deceased employe's day's work and day's pay began when he left home to attend a meeting with his employer at the latter's request, and that the decedent was in the course of employment when the accident happened. Upon appeal the Workmen's Compensation Board affirmed the referee from which decision the insurance carrier appealed to the court of common pleas of Luzerne County which, in an opinion by VALENTINE, J., sustained the appeal and directed judgment to be entered for the defendant. From that judgment claimant has taken this appeal.
The board has found that the decedent was struck by a hit-and-run motorcar driver while on his way from his home in Kingston, near Wilkes-Barre, to meet his employer, a street-cleaning contractor, at No. 32 Monroe Street, Wilkes-Barre. Mr. Curnow, the contractor, testified that Mr. Martin was usually engaged in the northern section of the city, and that at the time he had men engaged in the southern section of the city, and that the night before Martin met death, the said Curnow met Martin, and having in mind the laying off of some men, gave Martin orders to report to him in the City of Wilkes-Barre the following morning, before the said Martin would report to his work in the northern section of the city. Mr. Curnow further testified that at the time Martin met his death he was under specific orders from his employer, Curnow, and that Martin's pay on that occasion started from the time he left home; that he wanted him at his office in the lower part of the city the following morning to talk of future arrangements.
Defendant contends that the decedent under the facts stated was not in the course of employment when fatally injured.
At the time of the accident, Martin was carrying out the special orders of his employer, given the night before. Under these circumstances, he was in the course of employment. We believe the case comes within the decision in Krapf v. Arthur et al., 297 Pa. 304 affirming 95 Pa. Super. 468. It was held in Messer v. Mfrs. Light and Heat Co., 263 Pa. 5, and in Haddock v. Edgewater Steel Co., 263 Pa. 120, that an injury happening to an employe is compensable, if at the time he was charged with any duties of his employer.
There was no mistake of fact within the contemplation of the statute and the learned court below erred in sustaining the appeal of the defendant and reversing the order of the Workmen's Compensation Board.
The assignments of error are sustained, the judgment is reversed, the findings of the compensation board and referee are reinstated, and the petition to review is dismissed.