Butrin v. Manion Steel Barrel Co. , 361 Pa. 166 ( 1948 )

The question raised by these appeals is whether the appellants-employes were engaged in the furtherance of their employer's business at the time of the accident: Cf. Act of June 2, 1915, P. L. 736, as amended by the Act of June 21, 1939, P. L. 520, 77 PS, 411. If they were, their injuries are compensable under the Pennsylvania Workmen's Compensation Act; and the common law action cannot be maintained.

The undisputed testimony may be thus summarized: The employer, a steel barrel company, received a rush order which was as emergency or special job. An authorized employe, the foreman, directed another employe of the company to take a truck of the company and go to the home of the appellants (brothers) who were fellow workmen and bring them to the factory to work upon this special order at a time before regular working hours. No money was paid appellants for the time consumed in going from their home to the factory. While en route, an accident occurred wherein both appellants were injured. Appellants instituted an action in trespass against their employer and the truck driver, alleging that the driver negligently operated the company truck. A jury returned a verdict in favor of appellants and against both defendants-appellees. Appellees filed motions for a new trial and for judgment non obstante veredicto. The learned court below did not pass upon the motion for a new trial but granted the motion for judgment n. o. v., concluding that appellants' exclusive remedy was pursuant to the Workmen's Compensation Act since at the time of the accident they were in the course of their employment. These appeals followed.

Appellants contend that the court below erred in holding asmatter of law that they were in the course of their employment at the time of the accident for the reason that transportation to and from work was not a part of their contract of employment.

Where the contract of employment provides that the employer shall furnish the means of going to and returning from work, the employe is held to be actually engaged in the furtherance of the employer's business during such transportation: Dunn v. Trego, 279 Pa. 518, 124 A. 174; Morucciv. Susquehanna Collieries Co., 297 Pa. 508, 512, 147 A. 533;Logan v. Pot Ridge Coal Co. et al., 79 Pa. Super. 421; but ordinarily an employer is not liable for the payment of compensation for an accident occurring while the employe is going to or returning from his work: Stahl v. Watson Coal Co.,268 Pa. 452, 112 A. 14; Strohl v. Eastern Pennsylvania RailwaysCompany et al., 270 Pa. 132, 113 A. 62; Callihan v.Montgomery, 272 Pa. 56, 115 A. 889; Morucci v. SusquehannaCollieries Co., supra; Nilsson v. Nepi Brothers (et al.),138 Pa. Super. 107, 9 A.2d 912. However, there is anexception where some special duty is undertaken for, and by thedirection of, the employer: Cronin v. American Oil Co., 298 Pa. 336,340, 148 A. 476; Bock v. Reading, 120 Pa. Super. 468,470, 182 A. 732, and the cases therein cited. In Cronin v.American Oil Co., supra, Mr. Justice SADLER said, p. 340:

"The right to recover depends upon whether [plaintiff] was attacked while in the course of his employment. His hours of service, and the place where the same was to be performed, were definitely fixed. Though, ordinarily, his work ceased at midnight, and he returned again the following afternoon, yet no duties between these times were imposed upon him. When he left his working-place. to go home, the liability of the employer to him as an employee ended, unless after departing from the premises he was incidentally performing some act for the master under his contract of service. The exception in such case is found where there is some special duty undertaken for and directed by the employer after the work is completed: Haddock v. Steel Co., 263 Pa. 120; Cymbor v. Binder Coal Co., 285 Pa. 440. "

Judge PARKER (later Justice PARKER of this Court), inBock v. Reading, supra, said, p. 470: "As a general proposition, the liability of an employer ceases when the employee leaves the premises where he is employed, and the compensation law does not apply to an employee while going to and returning from his place of employment: Haley v. Phila.,107 Pa. Super. 405, 408, 163 A. 917; Cronin v. American Oil Co., 298 Pa. 336, 340, 148 A. 476. There is an exceptionwhere some special duty is undertaken for the employer." (Italics supplied.)

The test in determining whether a case comes under the workmen's compensation law is not whether the service was performed before or after hours of employment for which wages were paid: Malky v. Kiskiminetas Valley Coal Company, 278 Pa. 552,555, 123 A. 505, and the cases therein cited; Werner etal. v. Allegheny County et al., 153 Pa. Super. 10, 16,33 A.2d 451, but whether the special act performed by the employe at the employer's direction was in furtherance of the employer's business: Martin v. S.W. Ins. Fund et al., 108 Pa. Super. 570, 165 A. 514; Bock v. Reading, supra, and cases therein cited; Hoffman v. Montgomery County et al., 146 Pa. Super. 399,403, et seq., 22 A.2d 762.

In Martin v. S.W. Ins. Fund et al., supra, the employe, a street cleaning contractor, while on the way to meet his employer at a location other than his regular place of employment, and before his working hours (p. 572), upon thelatter's instructions, was struck by an automobile. The court held that the employe, in carrying out his employer's instructions, was acting in the course of his employment at the time of the accident.

Because the employer sent for appellants who were being rushed to the factory for the sole purpose of speeding theemployer's special emergency job, the transportation in such circumstances constituted a furtherance of the employer'sbusiness. Speed in the completion of the special or emergency order was obviously regarded by the employer as a furtherance of his business in which the transportation of these employes was an integral part.

Whether or not this is a compensation case is a question of law. There is no dispute in the evidence concerning the status of the appellants under the workmen's compensation law. There is, therefore, nothing to submit to a jury on this question. An examination of the charge reveals that the judge below didnot leave this question to the jury. What the judge did, after trying the case as a common law action in which he gave an adequate charge, was to later conclude and decide that it was not a common law action but a workmen's compensation case and for that reason entered judgment n. o. v.

Judgment affirmed as respects the Manion Steel Barrel Co. The record in the court below is to be amended by entering judgment on the verdict in favor of plaintiffs and against defendant, Thomas Struss.