Condron v. Philadelphia & Reading Coal & Iron Co. , 1921 Pa. Super. LEXIS 354 ( 1921 )

Opinion by

Henderson, J.,

The plaintiff alleged that she is entitled to compensation because of the death of a minor son, who was employed in a mine of the defendant company and who was last seen in one of the gangways, going back to look for a watch which he said he had lost; this was on November 25, 1918. So far as appears from the evidence, the young man has not been seen from that time.

The evidence does not show that he was the subject of an accident. The case rests on the inference, therefore, that he lost his life in the mine — this inference arising from the fact that he did not return home, nor was he seen in the places where he was accustomed to be. It is not the case of a presumption from a disappearance continued for seven years. Within a shorter period, the presumption of life exists,, except where the exposure of the person to imminent peril may be a circumstance from which the presumption of death might arise. The case discloses the fact that an extended search of the mine was made, which continued for more than a month, and that no trace of the boy was found in any of the workings or openings. It also appears that there were seven or eight passages through which he could have gone to the surface.

No evidence was introduced tending to show a special peril to which he was exposed. He had been employed in the mine for about five months, and presumably was familiar with the locality in which he was engaged as the driver of a mule. He was last seen between three and four o’clock in the afternoon, and men were working in the mine in the vicinity of the place where he was seen until about nine o’clock that night.

The evidence thus raised a clear issue of fact, and from a consideration of that evidence the referee was of the opinion that the claimant had failed to show by the preponderance of evidence that her son had met with an accident in the mine which resulted in his death. This conclusion was affirmed by the compensation board, and the learned trial judge was of the opinion that the findings of fact were conclusive on the court. His opinion adequately covers the case, and we do not find a sufficient reason for disagreeing therewith.

The judgment is, therefore, affirmed.