C. A. Whitehouse and S. H. Torchia, Deputy Attys. Gen., Ralph H. Behney, Counsel, State Workmen's Ins. Fund, Harrisburg, Charles J. Margiotti, Atty. Gen., for appellants.
Charles G. Webb, and Owlett, Webb & Cox, all of Wellsboro, for appellee.
Before Rhodes, President Judge, and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, Judges.
[ 167 Pa. Super. Page 502]
[ 167 Pa. Super. Page 503]
Allen Lee was killed in the course of his employment on August 18, 1944. On November 15, 1944, his widow filed two petitions for workmen's compensation: one against McMinn Industries, Inc., Lee's principal or immediate employer, whose insurance carrier was State Workmen's Insurance Fund: the other against A. W. Hinaman, Lee's alleged statutory employer, whose carrier was Pennsylvania Manufacturers Casualty Insurance Company. Liability was admitted, and this now hoary litigation has been waged exclusively between the defendants and their respective carriers. Meanwhile the widow has not received the compensation to which she is clearly entitled; a sad commentary upon a humanitarian system of law which was designed to secure speedy determination of responsibility and provide an immediate cushion for the devastating impact of industrial accidents upon dependents of workmen.*fn1
The referee, finding adequate facts, held McMinn solely liable. The board held that Lee was killed in the course of his employment for McMinn on Hinaman's premises, and that McMinn was primarily liable and Hinaman secondarily. Its order required McMinn to pay the compensation and should it default, Hinaman, as statutory employer, would be obliged to pay. The court below held McMinn solely responsible and relieved Hinaman from all liability. Three appeals were taken from as many separate judgments of the court
[ 167 Pa. Super. Page 504]
below by McMinn's carrier.*fn2 The appeals were consolidated by this Court, and the decisions will be embraced in one opinion.
Hinaman had three contracts with the Department of Highways for the construction of roads in Tioga County, referred to as the Wellsboro, Elkland and Knoxville contracts. He sublet the laying of the surfacing bituminous concrete on all the roads to McMinn at a stipulated price per ton. Under their agreement McMinn's employes, excluding its plant and trucking force, but including Lee, were paid by Hinaman, who deducted from the gross wages earned at the rates established by McMinn the employe's social security and income taxes. Hinaman carried McMinn's employes on his pay roll, and paid compensation insurance premiums upon them. In their periodic settlements, Hinaman deducted from the sum due McMinn the wages and the premiums paid by him, so that ultimately McMinn paid the insurance premiums covering compensation for its employes.
Pursuant to the agreement Hinaman loaned McMinn a ten-ton roller which McMinn used in his part of the work. Upon the completion of the Wellsboro contract McMinn's president, accompanied by Lee, moved the roller to the Elkland job, during which movement Lee was killed. The accident occurred on that stretch of the highway where Hinaman had made excavations in the ...