Louis Wagner, Philadelphia, Walter W. Harris, Scranton, for appellants.
James W. Scanlon, William J. Garvey, Scranton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 182]
The sole question in this workmen's compensation case is whether at the time of his accidental injury the claimant was an employe of the defendant. The compensation authorities, affirmed by the court below, found that he was, and the defendant and its insurance carrier took this appeal.
At the time of the accidental injury, the defendant, a non-profit corporation, owned and operated a golf course in Lackawanna County. It had a number of members who used its course, but the general public was also invited to play on the course upon payment of a greens fee. In June 1947 the claimant,*fn1 John Fanning, then aged twelve, and his brother James, accompanied John F. Nealon, a club member, when the latter played golf. Nealon testified that the boys stated that they would like to work as caddies; that he asked Stanley Wykowski, a director of the defendant and chairman of its greens committee, if the boys might work as caddies and that Wykowski replied, 'Well, John, I don't see any reason why they can't as long as they get along with the other boys here and behave themselves.' Pursuant to the authority so given, the claimant went to the golf course and worked as a caddy
[ 169 Pa. Super. Page 183]
'nearly every day' until he was injured -- a period of about a month.
Elwell P Dietrick, president of the defendant, testified that it was the policy of the club to discontinue caddy service, but admitted that this policy was motivated primarily by a desire to save premiums on workmen's compensation policies. Notwithstanding this avowed policy, the testimony discloses that there were at most times 'about ten' caddies available for use; that the officials of the club were aware of the presence of the caddies, and in fact maintained a 'canopy' beneath which the boys ate their lunches and made their headquarters while awaiting a turn to work; that Wykowski interceded on behalf of the Fanning boys when they had a dispute with a 'big boy from Throop' who handled the matter of priority of work, and from that time on both Fanning boys were permitted to caddy in rotation. On July 30, 1947, while John Fanning was caddying for one Dempsey on the golf course of the defendant club, he was struck in the eye by a ball hit by another player. The injury necessitated the removal of the boy's right eye and resulted in a permanent disfigurement of his face.
The relation of master and servant, of course, must exist to entitle an injured claimant to compensation. This relation does exist, however, where the employer has the right to select the employe, the power to remove and discharge him, and to direct both what work shall be done and the way and manner in which it shall be Super. 24, 161 A. 900. With regard to the power to direct the way and manner of doing the work it is important to observe that the question is not whether the employer has actually exercised control, but whether he has the right to control. Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 73 A.2d 299. The Workmen's Compensation Act, 77 P.S. § 1 et seq., was not intended to limit hiring contracts
[ 169 Pa. Super. Page 184]
to express contracts, to the exclusion of that class of contracts which arise by implication of law where circumstances appear which according to the ordinary course of human dealings show a mutual intention to contract. Reitmyer v. Coxe Bros. & Co., Inc., 264 Pa. 372, 107 A. 739; James v. Shapiro, 135 Pa. Super. 550, 5 A.2d 815. These principles of law are ...