Nelson v. Borough of Greenville

124 A.2d 675, 181 Pa. Super. 488
CourtSuperior Court of Pennsylvania
DecidedJuly 17, 1956
DocketAppeal, No. 61
StatusPublished
Cited by24 cases

This text of 124 A.2d 675 (Nelson v. Borough of Greenville) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Borough of Greenville, 124 A.2d 675, 181 Pa. Super. 488 (Pa. Ct. App. 1956).

Opinion

Opinion by

Wright, J.,

Raymond L. Nelson, aged 42, died on February 6, 1954. We are here concerned with the claim of his widow under The Pennsylvania Workmen’s Compensation Law.1 The Referee made an award which was affirmed by the Board. An appeal was taken to the Court of Common Pleas of Mercer County, which tribunal affirmed the award and entered judgment in favor of the claimant. This appeal to the Superior Court followed. The factual situation is set forth in the [490]*490following excerpt from the opinion of Judge McKay for the court below:

“On January 22, 1954, Raymond L. Nelson, the decedent, was a paid fireman employed by the Borough of Greenville as assistant fire chief. He had been continuously employed as a paid fireman for ten years.
“Upon the evening of that day a fire occurred in West Salem township, which adjoins Greenville, the fire being approximately one-eiglith of a mile from the borough limits. There was an agreement in effect between the authorities of the township and of the borough which provided that when either municipality called upon the other for aid in putting out a fire, the other would respond. The General Borough Act of 1927, P. L. 519, Section 1202, as amended, 53 PS §1337 (a), authorizes an agreement of this character.
“When the serious nature of the fire ivas learned, the chief of the township fire department requested aid of the Greenville fire department, whereupon the Greenville chief, Howard C. Callahan, started for the fire in the borough fire truck, first instructing the attendant at the fire station to call two or three .of the paid employees of the Greenville fire department to report at the fire. The attendant called the decedent at his home, whereupon the latter drove directly to the scene of the fire (in his own automobile) and reported to Fire Chief Callahan. It was a part of decedent’s duty to be on call 24 hours a day and he was required by his employment to respond to a summons of the character received, whether the fire was within or outside of the borough.
“During that time that he was fighting the fire, Nelson ácted under the orders and at the direction of the Greenville chief, but both he and the chief were under the general direction of.the chief of. the West Salem township fife department.
[491]*491“While engaged in attempting to extinguish the fire, and at the instruction of the chief, Nelson and another Greenville fireman (Keelen) entered the burning building, the interior of which was on fire and filled with smoke. Keelen testified that there was more smoke than with the average fire, and that it was very thick. Keelen and Nelson were on their knees as they fought the fire, and took turns returning to the outside to get fresh air. After remaining from six to nine minutes on the porch of the burning house, Nelson went to the truck, got an oxygen mask, returned to the fire, adjusted the mask to his face and re-entered the building. He remained inside the burning building for another three or four minutes. When he came out he took off the mask, coughed, and went to the truck. He later returned complaining of pain in his arms and chest, and asked Keelen to take him home. He spent twenty minutes in all in the smoke. While being taken to his car he collapsed. He was removed to the Greenville Hospital, where he died on February 6, 1954. An autopsy disclosed that he had coronary sclerosis prior to his death”.

On this appeal the appellants raise the same three questions which were unsuccessfully advanced before the Board and in the court below. In our consideration of the case we cannot independently weigh the evidence and substitute new findings for those of the workmen’s compensation authorities: Greap v. Oberdorff, 178 Pa. Superior Ct. 153, 113 A. 2d 339. Where the findings of the Board are supported by the evidence, they are binding upon us: Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A. 2d 853. Moreover, in determining whether the evidence is sufficient to sustain the findings, we are required to review it in the light most favorable to the [492]*492claimant: Yaklich v. Union Collieries Co., 158 Pa. Superior Ct. 55, 43 A. 2d 591.

Appellants first contend that the decedent “was not an employee of the Borough of Greenville at the time of the alleged occurrence, but was a loaned employee to West Salem Township”. In this connection the Referee found that the decedent “was working with and under the direction of H. C. Callahan his superior, who was the Fire Chief for the Borough of Green-ville”. Appellants’ contention is based on testimony “that the Borough of Greenville fire department would not answer calls from an outside township unless they got a call from the fire chief in the outside township for aid”. It is argued that Nelson was working at the time only because of “the fact that the Greenville company was called to attend the fire in West Salem Township”; and that “there can be only one conclusion, namely, that the attendance of Nelson at the fire was for the sole benefit and advantage of West Salem Township”. This argument overlooks, first, the fact that decedent was actually on call at all times by the Greenville fire department and, second, the fact that decedent’s attendance at the West Salem fire was at the command of liis own chief and was under a mutual aid arrangement between the fire companies. Appellants stress Callahan’s testimony that the fire chief of West Salem Township was in charge during the fire. However, Callahan further testified that he nevertheless “maintained control over his own Department’s men and equipment”. Moreover, the evidence is clear that, when Nelson arrived at the fire, he reported to Callahan and received all of his orders from him. There is no evidence whatever that- there was any contact or communication between Nelson and the chief of the West Salem, company.

[493]*493It is of course true, as appellants contend, citing Scattone v. Mulholland, 290 Pa. 341, 138 A. 855, and Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 109 A. 224, that “ ‘Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent. . .’ ” The essential test is which employer had control or the right of control at the time of the accident, not only with regard to the work to be done but also as to the manner of performing it: Ramondo v. Ramondo, 169 Pa. Superior Ct. 102, 82 A. 2d 40. In the words of our colleague, Judge Hirt, in an opinion handed down this date in Mitchell v. East Nantmeal Township, 181 Pa. Superior Ct. 482, 124 A. 2d 150: “The difficulty is not Avith the Iuav, for it is Avell settled; the problem in cases of this class, is the application of settled principles to the peculiar facts of each particular case ... In a case Avhere the facts are not in dispute or Avhere the evidence leaves no sufficient ground for inconsistent inferences therefrom, the question as to Avho is the servant’s employer may be for the court. But where the evidence, as here, raises an issue of fact, or contradictory inferences can be draAvn from it, the question is one for determination by the fact finders- — in these cases the referee and the board.”

In our vieAV, the evidence fully supports the finding of the Referee that the deceased Avas an employe of Greenville Borough.

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124 A.2d 675, 181 Pa. Super. 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-borough-of-greenville-pasuperct-1956.