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BROCK v. BOWSER (01/14/54)

January 14, 1954

BROCK
v.
BOWSER, APPELLANT



Appeals, Nos. 285 and 286, Jan. T., 1953, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1951, No. 1896, in case of Joseph Brock, Jr., by his father and natural guardian, Joseph Brock, and Joseph Brock in his own right, v. Clarence M. Bowser et ux., trading as Clarence M. Bowser & Son. Judgment affirmed.

COUNSEL

Thomas R. White, Jr., for appellants.

Ralph Schwarts, for appellees.

Before Stern, C.j., Stearne, Jones, bell, Chidsey, Musmanno/ and Arnold, JJ.

Author: Musmanno

[ 376 Pa. Page 210]

OPINION BY MR. JUSTICE MUSMANNO

Clarence M. Bowser and his wife, Lobelia Bowser, trading as Clarence M. Bowser & Son, make sausage in a garage in the rear of their home at 2632 W. Oxford Street, Philadelphia. Their equipment consists of a grinder, which grinds the meat; a mixer, which mixes the meant; and a stuffer, which as the term and the others self-define themselves, stuffs the meat (into the pork casings). They employ a sausage man who works for them every Tuesday. It happens occasionally when business is particularly good that they run out of sausage by the end of the week, and, on those occasions their son, known as Sonny, undertakes to supply enough sausage to take care of their sausageless customers over the weekend.

On December 16, 1950, which was one of those Saturdays, Sonny, 15 years of age, called on his companion Joe Brock, Jr., 16 years of age, who lived only a half block away, and asked him to participate with him in the venture of the day which was to produce 100 pounds of sausage. Joe had helped out before, and for his participation had received, with Sonny, from Clarence Bowser, odd sums of money, a "little change," "move money," and sometimes he got a "couple of dollars."

In the early afternoon of the Saturday referred to, Joe proceeded to clean out the sausage mixing machine which had been employed all morning. He was wearing a coat apron with rolled-up sleeves which at full length were 6 inches longer than his arms. While scraping the bits of sausage meat loose from the sides of the machine and then using a water hose in the

[ 376 Pa. Page 211]

    further cleansing operation, a sleeve unrolled and became caught in the knives of the electrically operated apparatus. When he was finally extricated, he had sustained a broken arm and other injuries.

His father brought a suit in trespass against the defendants. At a trial before Judge GUERIN in the Common Pleas Court of Philadelphia County, the plaintiff was non-suited on the ground that the relationship between Joseph Brock, Jr., and the Bowsers was an employe-employer one. The court en banc granted plaintiffs' motion to remove the non-suit. The defendants appealed to the Supreme Court, but the appeal was later withdrawn and discontinued. The case then went to trial before Judge SMITH and a jury, and a verdict was returned in favor of the minor plaintiff and his father. The defendants have now appealed to this Court from the refusal of a motion for judgment n.o.v., and for a new trial, urging the same employee-employer relationship raised before.

An extraordinary barrier, and, as we see it, an insurmountable one, rises before counsel for the defendants. While he is arguing that his clients Clarence Bowser and Lobelia Bowser employed Joe Brock, the clients themselves are insisting that they did not. It is not unknown for lawyer and client to disagree in the offices of the lawyer and even in the lobby of the courthouse on the way to the trial, but scarcely does it happen that in the very tribunal in which the lawyer is presumably championing the cause of his client we find the lawyer and client on opposite sides, contending against each other. Clarence Bowser testified in court as follows: "Q. Did he work for you on previous occasions? A. ...


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