Herbert A. Barton, Swartz, Campbell & Henry, Philadelphia, Rober B. Reynolds, Norristown, for appellant.
Robert C. Duffy, Francis Logan, Philadelphia, Desmond McTighe, Norristown, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 513]
In this workmen's compensation case Miriam Wall filed her petition for compensation on behalf of herself and four minor children naming Penn Lumber and Mill Works (hereinafter called Penn) and West Motor Freight (hereinafter called West), appellant, as the employers of her husband, Charles Wall, who was killed on September 15, 1949, while driving on business of West when the tractor-trailer he was operating overturned and caught fire. Each defendant filed an answer averring that the other defendant was the deceased's employer at the time of death. The referee and the board found West was deceased's employer and awarded compensation. The court below affirmed the award and entered judgment accordingly. West and its insurance carrier have now appealed.
Dependency and the happening of events which entitle the widow and her children to compensation are conceded. The controversy revolves around the question of which company was deceased's employer when he met his death and therefore liable to pay compensation.
The record establishes that Penn is a lumber and mill working concern in Pennsburg, Pennsylvania; West is a common carrier hauling freight for hire. On September 14, 1949, a 'Motor Vehicle Lease and Agreement' was entered into between Penn and West whereby
[ 171 Pa. Super. Page 514]
Penn as lessor leased a tractor to West as lessee 'for the duration of a single outbound (return) trip to be used by Lessee in transporting property from Hamburg, Pennsylvania to Atlanta (Georgia) and return * * *'. There follows a description of the equipment leased together with the price thereof and the rate of wages to be paid to Charles Wall, the driver. The critical provision of this lease is lessee's covenant (a) whereby the lessee 'Agrees that during the term of this lease, the said vehicle shall be solely and exclusively under the direction and control of the Lessee who shall assume full common carrier responsibility (1) for loss or damage to cargo transported in such motor vehicle and (2) for the operation of such vehicle.' Further pertinent lease provisions read as follows: 'The compensation to be paid by Lessee to the Lessor for the lease of the vehicle described herein shall be the sum of 19 cts. per mi. which amount shall constitute full and complete payment by lessee for all equipment and materials supplied, maintenance and operating expense, wages of driver, all taxes, insurance, including social security, workmen's compensation and withholding tax.' Samuel W. Hillpot, general manager of West, testified that the deceased driver received specific instructions from and was under the direct control of the night dispatcher of West; that the deceased driver was subject to the direct orders and control of West. The compensation authorities on the basis of the foregoing found as facts that West assumed control of both the driver and the equipment; that no control was exercised over the deceased by Penn, but that control as to the work done by decedent was exercised by West; and concluded that Charles Wall, the deceased, was an employee of West at the time of the fatal accident.
Appellant contends that it was error not to find that Penn was the employer at the time of the fatal accident since the lessor agreed in the lease agreement
[ 171 Pa. Super. Page 515]
to '* * maintain, service and keep the vehicle * * * in good repair, provide all gas, oil, tires and other equipment * * *' and further was liable for '* * * loss or damage to or destruction' of the vehicle and where the lessor agreed to indemnify ...