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HANST v. SWARTZFAGER ET AL. (01/17/52)

January 17, 1952

HANST
v.
SWARTZFAGER ET AL.



COUNSEL

H. Ray Pope, Jr., Clarion, for appellant.

David W. Ketler, John V. Wherry, Grove City, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 170 Pa. Super. Page 220]

DITHRICH, Judge.

In this workmen's compensation case the referee, the Board and the Court of Common Pleas have all ruled against the claimant on the ground that he was not an employe of defendant but was an independent contractor at the time he was injured. The facts, all of which were put into evidence by claimant, the defendant not having offered any testimony, are, as gleaned from the opinion of the Board, substantially as follows. Claimant, a farmer, was the owner of a truck equipped with a winch. It was for hire by the public at the rate of $4 an hour, the owner driving it himself and furnishing the oil and gas, and was used mostly in the oil fields of Clarion County and vicinity.

On June 1, 1948, defendant, a drilling contractor, telephoned claimant, as he frequently had occasion to do, and arranged for him to move an oil rig the following day on a lease of the Dundee Gas Company which defendant was operating. After claimant had finished moving the rig, which took him about half the day, he was requested by defendant to take a stem to Brookville, Jefferson County, adjacent to Clarion County, to a repair shop and to bring back a load of pipe. He was told by defendant to bill him for moving the rig and to bill the Dundee Gas Company for the trip to and from Brookville. He furnished claimant with a helper, for he knew that one would be needed in loading and unloading the estimated 600 feet of pipe (actually 606 feet) in lengths of 20 to 25 feet, each weighing between 22 and 24 pounds per foot. While unloading the pipe one of the casings rolled off the truck and struck claimant, breaking his legs and totally disabling him up to April 13, 1949, the time of hearing before the referee.

While an appeal was pending from the order of the referee disallowing compensation, claimant petitioned

[ 170 Pa. Super. Page 221]

    the Board for a rehearing to afford him an opportunity to call the defendant as a witness. The petition was granted and a rehearing had, at which the defendant was called by claimant as for cross-examination. Every consideration was shown claimant by the compensation authorities, but his case was not helped in any way by the cross-examination of defendant.

The burden of appellant's complaint is that the referee erred in finding as a fact that 'At the time of the accident claimant was not an employe of * * * [defendant], but was an independent contractor. The relationship of master and servant or employer and employe did not exist between * * * [them].'

Upon reviewing the undisputed evidence and applying all the well-established tests to determine whether claimant had met the burden of proving that he was an employe, Thomas v. Bache, 351 Pa. 220, 40 A.2d 495, 500, we do not see how the referee could have made any finding other than that he was not an employe or come to any conclusion other than that, as an independent contractor, he was not entitled to compensation. 'The vital test in determining whether the workman' is a servant of the person who engages him for the work 'is whether' he is 'subject to' the latter's 'control or right of control not only with regard to the work to be done but also with regard to [the] manner of performing it.' Venezia v. Philadelphia Elec. Co., 317 Pa. 557, 177 A. 25, 26.' Thomas v. Bache, supra, 351 Pa. at page 229, 40 A.2d at page 500. Here the referee found that the truck was not only owned and operated by the claimant but that 'it * * * [was] in his possession and control at all times.' (Emphasis added.)

The case differs in that respect from Felten v. Mellott, 165 Pa. Super. 229, at page 234, 67 A.2d 727, at page 729 where we quoted with approval the statement of the court below that 'He [claimant] was at all times ...


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