Opinion
January 10, 1949.
March 21, 1949.
Courts — Jurisdiction — Cause of action — Trespass for negligence — Plaintiff as employe of defendant — Right of recovery under Workmen's Compensation Act — Averments — Casual employment — Regular course of employer's business — Preliminary objections.
1. A court has jurisdiction of an action in trespass to recover damages for injuries resulting from the alleged negligence of the defendant, even though plaintiff was an employe of the defendant and was injured in the course of his employment, and is thereby precluded from recovering damages in a trespass action. [414]
2. Where, in an action of trespass, the complaint averred that plaintiff was casually employed by defendant in his gasoline service station, and was injured by an explosion of gasoline which he was using, at the direction of another employe of defendant, to remove embedded grease from the floor of the premises, it was Held, on preliminary objection, that the question whether or not plaintiff's work was within the regular course of the employer's business was a question of law but one not to be decided until the relevant facts were more fully developed. [414-15]
Argued January 10, 1949.
Before MAXEY, C. J., DREW, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 72, March T., 1949, from order of Common Pleas, Allegheny Co., April T., 1945, No. 1172, in case of Walter Scanlon, a minor, by his father and natural guardian Michael Scanlon and Michael Scanlon in his own right v. Thomas H. Cauley, trading as Cauley Brothers Service Station. Order affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by ADAMS, J., of the court below, EGAN, O'TOOLE and ADAMS, JJ., as follows:
In a trespass action, the plaintiffs claimed that the minor plaintiff was injured by an explosion of gasoline which he was using to clean the floor in the premises in which defendant conducted a gasoline station. The complaint, as amended, asserted that the explosion was caused by the negligence of the defendant. Defendant filed a preliminary objection.
Defendant's preliminary objection is based on two grounds; namely, (1) the Court lacks jurisdiction of the subject matter of the litigation, and (2) the complaint, as amended, fails to state a cause of action. Each of these objections raises one and the same question, i. e.: Does the complaint, as amended, state a cause of action so clearly within the Workmen's Compensation Act as to require a final judgment adverse to plaintiff?
We decide the question of jurisdiction against the defendant. Our authority is Welser v. Ealer, 317 Pa. 182. The Welser case was referred to in Gallagher v. Keystone Realty Holding Company, 333 Pa. 9, 12, with the following comment: "Thus, in Welser v. Ealer, 317 Pa. 182 [ 176 A. 429], it was held that the court had jurisdiction over a suit for damages for injuries resulting from an automobile accident, although plaintiff was an employee of defendant and was injured in the course of his employment and thereby precluded from recovering damages for his injury by any method other than that prescribed in the Workmen's Compensation Act."
If the complaint, as amended, makes it clear that the minor plaintiff, when he cleaned the floor of grease, was not engaged in casual employment or that the work done was in the regular course of the business of the employer, the demurrer must be sustained. ( DeMay v. Pine Twp. School Dist., 159 Pa. Super. 214.) But it is conceded in defendant's brief that casual employment is averred. As to the second element (regular course of employer's business) the averments of the amended complaint do not require the conclusion, as a matter of law, that the work done was in the regular course of the business of the employer. At the direction of an employe of defendant, the minor plaintiff secured several gallons of gasoline and used it to removed embedded grease from the floor of part of defendant's premises. Such work may or may not come within the description, "regular course of the business of the employer." This is a question of law. But it ought not to be decided until the relevant facts are more fully developed.
For these reasons the preliminary objection was overruled.
Defendant appealed.
William S. Doty, with him Harry C. Ploeger, for appellant.
Henry Kauffman, with him Louis Little, for appellees.
The order of the court below is affirmed on the opinion of Judge ADAMS.