Susman v. Kaufmann's Department Store

128 A.2d 173, 182 Pa. Super. 467, 1956 Pa. Super. LEXIS 418

• Court: Superior Court of Pennsylvania
• Decided: December 28, 1956
• Docket: Appeal, No. 231
• Status: Published

Opinion

OriNiON by

Wright, J.,

In this workmen’s compensation case Edmund Susman, the claimant, was severely injured when a station wagon in which he was a passenger was involved in a collision. He filed a claim for compensation from his employer, Kaufmann’s Department Store. An award was made by the referee and affirmed by the Workmen’s Compensation Board. Upon appeal to the Court of Common Pleas of Westmoreland County the order of the Board was affirmed, and judgment Avas entered in favor of the claimant. The employer has appealed.

The claimant resided in Jeannette, Pennsylvania. In March 1954, during the period Avhen the regular drivers for Kaufmann’s Avere on strike, Samuel Steffey, a neighbor of claimant, and temporarily on furlough from his regular work Avith the Pennsylvania Railroad, secured a job Avith Kaufmann’s as the driver of a station wagon which Avas used to deliver and pick up parcels. Appellant’s employment supervisor testified that “this Avas a special set-up which Ave called a ‘special messenger detail’ ”. After Steffey had been Avorking for several months, he Avas requested to find someone in the vicinity of Jeannette “to help me out Avith my deliA'eries at night . . . someone close to home to Avork Avith me, because I had a large area out that Avay to coA’er. And almost every night I had pick-ups, or. packages, to take out, and they didn’t like to see me doing it by myself”. Steffy “contacted quite a few fellows, but no one wanted to work”. He finally got in touch with Susman, informing him, inter alia, “that he would have transportation to and from work as long as I had the station Avagon with permission”. Claimant was thereafter¹ hired by Kaufmann’s as a helper on the station wagon. He testified that he asked Miss Mason, Avko Avas in charge of the drivers, “if it Avas all right to ride back and forth in it, and she granted permission as long as Sam had the Avagon”. Claimant did ride back and forth Avith Steffey from the time of his employment until the date of the accident on all but two working days. On one of these days claimant had to leave work early because of a funeral. On the other day the station wagon Avas in the garage for repairs. On October 30, 1954, at 6:30 p.m., claimant Avas on his way home Avith Steffey Avhen the collision occurred.

The referee’s fifth finding of fact Avas “that the claimant sustained accidental injuries during the course of his employment Avith the defendant Avhile riding in the company’s station wagon Avhich was engaged in the furtherance of the defendant’s business”. In its opinion the Board stated: “It is important to take cognizance of the fact that the accident occurred during the long drawn out department stores’ drivers’ strike. Delivery of merchandise Avas accompanied by the threat and danger of violence. It is reasonable to believe that the employment of station Avagon personnel Avas accompanied by some indulgences on the part of the employer. We believe that the arrangements in the instant case for the employment of the claimant contemplated his nse of the station wagon as a medium of transportation to and from work, because he lived in such close proximity to the driver”. And again in conclusion: “We cannot lose sight of the fact that the defendant was having a serious labor dispute at the time that the claimant accepted employment. Living in Jeannette, it is reasonable to believe that transportation to work from claimant’s home in Jeannette was a factor in the employment and since he was injured in the vehicle provided by the defendant for such transportation, the claimant is entitled to compensation”.

The only issue raised by appellant is “that the claimant was not engaged in the course of' his employment at the time of the accident nor in the furtherance of his employer’s business or affairs”. It is argued (a) that claimant was not being furnished Avith transportation; and (b) even if he was, the transportation was not furnished as an incident of the employment contract and for the benefit of the employer but as a mere convenience to the employe. Appellant emphasizes Steffey’s admission that he had no pick-up or delivery on the evening of the accident or on the morning of the following day, and that, shortly before the accident, he had been specifically instructed in such event to put the station Avagon in the parking lot and not use it for transportation.

On the other hand Susman testified that he Avas not usually informed whether there Avere pick-ups or deliveries until they were in process, and that he knew nothing of Steffey’s specific instructions. , On the evening of the accident, so far as Susman was concerned, “Mr. Steffey had the wagon”. It is the position of counsel for appellee that the entire factual situation supports the conclusion that Susman was being “supplied transportation as an incident of liis employment and for the benefit of his employer”. He contends that the arrangement regarding transportation was contemplated by the employer, was in the employer’s interest, and was implied in the contract of employment. It should perhaps be noted that Steffey, who was also injured in the accident, returned to his job after being released from the hospital, and was not subjected to any disciplinary action.

In cases of this nature, our review on appeal is limited to matters of law, and where the findings of the Board are based on competent evidence they are conclusive: Greap v. Oberdorff, 178 Pa. Superior Ct. 153, 113 A. 2d 339; Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A. 2d 853. The claimant, having the award in his favor, is entitled to the benefit of all inferences from the evidence which are favorable to him: Neary v. Carbondale General Hospital, 181 Pa. Superior Ct. 189, 124 A. 2d 470; Nelson v. Borough of Greenville, 181 Pa. Superior Ct. 488, 124 A. 2d 675; McClemens v. Penn Auto Parts, 181 Pa. Superior Ct. 542, 124 A. 2d 623. It is within the province of the compensation authorities to evaluate the testimony: Muenz v. Kelso Beach Improvement Association, 181 Pa. Superior Ct. 105, 124 A. 2d 153. Where the inferences drawn by them from the evidence are reasonable and logical, it is immaterial on appeal that other inferences might have been drawn: Leber v. Naftulin, 179 Pa. Superior Ct. 22, 115 A. 2d 768.

' There is.no general 'formula to determine readily whether an accident off the premises occurred in the course of' employment. Many cases involving this question. must'be' disposed of on their, .own. peculiar facts and the question is frequently a reasonably close one: Coleman v. Fischer, 164 Pa. Superior Ct. 261, 63 A. . While it is the general rule that an employer is not liable for compensation to an employe for injuries occurring off the premises while the employe is going to or returning from work, Palko v. Taylor-McCoy Coal & Coke Co., 289 Pa. 401, 137 A. 625, this rule is subject to exceptions. See Keim v. Burkholder and Johnson, 182 Pa. Superior Ct. 460, 127 A. 2d 752. Where the contract of employment provides that the employer shall provide the means of going to or from work, the employe is actually engaged in the furtherance of the employer’s business during such transportation: Hadfield v. American Society of Composers, Authors & Publishers, 174 Pa. Superior Ct. 394, 101 A. 2d 423. In keeping with a liberal construction of the compensation act, it has consistently been held that where transportation, or the means of transportation, is furnished the employe by the employer as a part of the agreement of employment, expressly or impliedly, and for the interest of the employer, as well as the employe, the employer is liable for injury sustained by the employe while being transported, or while using the means of transportation.² Under such circumstances the transportation is considered as a privilege incident to the contract of employment: Knorr v. Central R. R. of New Jersey, 268 Pa. 172, 110 A. 797.

An examination of the testimony sustains the conclusion of the Board that, due to the existing labor dispute, transportation to and from work was an important factor in claimant’s employment, and was a privilege incident thereto. In this respect the instant case is somewhat analogous to Dunn v. Trego, 279 Pa. 518, 124 A. 174. In that case the employer, owing to a labor shortage, engaged a workman living at a considerable distance from its plant and, as a part of the contract of employment, agreed to transport the workman to and from his home without charge. It was held that the employer was liable for compensation for an injury received while the workman was on his way home on the ground that the injury was incurred in the course of employment. The Supreme Court emphasized that, due to the labor shortage, the transportation was for the employers advantage and was furnished as an inducement for the employe. Similarly in the case at bar, because of the labor dispute, Kaufmann’s was experiencing difficulty in making deliveries. There were many instances of violence and it was necessary for the employer to make concessions to persons willing to undertake the hazards involved. It is for this reason that claimant was expressly authorized to use the station wagon for transportation when operated by Steffey, whose assurance Avith regard to transportation originally induced claimant to take the job.

Our conclusion is that the decision of the court below should be affirmed. It must be borne in mind that we are here dealing with “a special set-up” Avhile regular employes Avere on strike. In the words of Judge Bauer for the court en banc, “it seems apparent to this Court that with the strike going on in Kaufman'n’s store where it was necessary to deliver, packages and merchandise to avoid inter ferénce by the union'strikers that it was certainly to the advantage of Kaufmann’s to provide the transportation used, in. this" particular. case. It takes little understanding to realize that when a strike is on that violence may occur if the striker’s rights are being interfered with. The Referee and the Board certainly had a right to consider every inference along these lines”.

Judgment affirmed.

1 The employment supervisor testified that the date of employment was September 21, 1954. Based upon claimant’s testimony, however, the Board stated “that the claimant was employed by the defendant during the late part of July, 1954”.

2 Logan v. Pot Ridge Coal Co., 79 Pa. Superior Ct. 421; Bock v. Reading, 120 Pa. Superior Ct. 468, 182 A. 732; Beck v. Ashton, 124 Pa. Superior Ct. 307, 188 A. 368; Hohman v. Soffel Co,, 157 Pa. Superior Ct. 274, 43 A. 2d 361, affirmed, 354 Pa. 31, 46 A. 2d 475; Campagna v. Ziskind, 287 Pa. 403, 135 A. 124; Butrin v. Manion Steel Barrel Co., 361 Pa. 166, 63 A. 2d 345; Kramer v. Philadelphia, 179 Pa. Superior Ct. 129, 116 A. 2d 280.