DocketNumber: Appeal, No. 235
Citation Numbers: 71 Pa. Super. 443
Judges: Head, Henderson, Kephart, Porter, Ready, Trexler, Williams
Filed Date: 4/21/1919
Status: Precedential
Modified Date: 2/18/2022
Opinion by
This action was brought on an instrument in writing, the material part of which is in the following form:
“No. 136 $500.00
“LESTER PIANO COMPANY.
“Philadelphia, Pa.
“This is to certify that Frank Samek has been a loyal and faithful employee of the Lester Piano Company in its factories at Lester, Pa., for over one year. The Lester Piano Company therefore promises that if he is in the employ of the Lester Piano Company at the time of his death there will be paid to Mrs. Frank Samek the sum of One Hundred Dollars ($100.00) and Ten Dollars ($10.00) each week thereafter for a period of forty weeks. This agreement is personal to the said employee only, and shall terminate absolutely if he ceases to be in the employ of the Lester Piano Company. It cannot be transferred or assigned in any way. In the event of his death after the death of his wife, and leaving minor children under the age of sixteen years, the Lester Piano Company promises to pav ($100.00) at death and the sum of Ten Dollars ($10.00) per week for the support of said minor children for a period not to exceed forty weeks. No payment shall be made to minor children
“In witness whereof, the Officers of said Company have hereunto subscribed their names this 23d day of Sept., 1916.”
The case was tried before one of the judges of the Municipal Court without a jury. Frank Samek was the husband of plaintiff. He died February 9, 1917. The defendant is a manufacturer of pianos and Samek had been in the employ of that company for eleven or twelve years as a regulator and tuner of pianos. In the month of October, 1916, while in the service of the company he became sick with an affection of the lungs, which became more aggravated as time elapsed up to the date of his death. The position taken by the appellant is that the plaintiff’s husband was not in the “employ” of the defendant at the time of his death, and that the plaintiff is therefore not entitled to the benefit provided for in the agreement. It is conceded that Samek was not employed for a stated period and he was paid as a piece-worker. The court found and the evidence supports the finding, that he had been in the continuous service of the company for eleven or twelve years. He worked steadily at the factory and occasionally worked over time. He had been sick for a period in the summer of 1916, but had returned to work before the agreement was given to him on which the action is founded. There is no doubt as to the fact that he was not at work the day he died, nor at any time in the period of a little more than three months preceding his death. The question which the learned trial judge was called upon to decide and which is presented for our consideration on the appeal is whether the defendant’s undertaking applies only where the employee is actually at work, or whether it should be construed in the light of its recitals and the circumstances as applicable to a case where an employee becomes dis
The first period in the agreement.contains the defendant’s admission that Samek had been “a loyal and faithful employee” of the defendant company for over one year. It is a reasonable interpretation of this statement that he was recognized by the company as their employee for more than a year preceding the giving of the obligation. The last period in the agreement should be read in connection with the first, as it throws light on the origin of the undertaking and the motive of the company in executing it. It is there stated that the certificate is a gift from the company with the hope that it will be a link binding employer and employee closer together. It was evidently a promise in the nature of a bonus or reward for faithful service, and if it is to be construed as applying to the time immediately preceding its date, we have the undisputed fact that it covers a period in the preceding summer when Samek was sick and not at work in the factory. He was recognized, however, as a loyal and faithful employee during all that time, and this means, if it means anything, that the company recognized him as one of its workmen although he was not actually at work every day during the period referred to. He was an employee of the company and had been for the long period in which he had been rendering faithful service. In view of the relationship between the employer and.employee as declared by the defendant and of the desire of the latter to forge “a link binding employer and employee closer together,” we are unable to assent to the argument that the certificate could only have vitality and vigor when the employee was actually at work. In such a view of the case, no benefit would arise from the obligation unless the workman died at his bench, or perhaps on his way to or from the factory. We regard this as too close a construction of the instrument. It must have been in contemplation of the parties that the death of an employee was likely to be preceded