A. Floyd Vosburg, Karl H. Strohl, Edward Yawars, Jr., Scranton, for appellant.
David J. Conroy, James W. Scanlon, Scranton, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 175 Pa. Super. Page 266]
This is a workmen's compensation case. Following the death of her husband, Ceil Rybitski filed a claim petition on behalf of herself and minor children. The fatal accident admittedly occurred off the employer's premises. The Referee dismissed the claim petition on the ground that the decedent was not injured in the course of his employment, not having been actually engaged in the furtherance of the business or affairs of the employer. See Act of 1915, P.L. 736, § 301(c), 77 P.S. § 411. The decision was affirmed by the Board and by the Court of Common Pleas, and judgment was entered for the defendant. This appeal followed.
Joseph Rybitski was employed by the defendant in the manufacture of metal polishes. He worked from nine a. m. to five p. m. His principal duty was the mixing and cooking of the formula. While it was necessary to watch the mixture constantly while it was cooking, by reducing the heat it was possible to leave the process for short periods. The manufacture of the quota of polish for the day was usually completed by
[ 175 Pa. Super. Page 267]
two or two-thirty o'clock in the afternoon, at which time decedent would leave the premises for lunch. After returning from his lunch, decedent would spend the balance of the day at various other tasks including loading and unloading, driving trucks, and occasionally acting as chauffeur for his employer's wife. It was customary for decedent to have coffee at twelve o'clock. Sometimes he would go out for the coffee himself. On other occasions a fellow employe would get it for him. After the coffee was obtained, it was consumed on the premises. On November 14, 1951, decedent was requested to drive the employer's wife to Olyphant at three o'clock p. m. About noon decedent turned down the heat under the vats and went to Harding's Diner, a restaurant some 650 feet distant from the employer's premises and the customary place for decedent to obtain coffee and also to eat his lunch. Decedent purchased a bottle of coffee and two tea biscuits, and started to return by a short cut over private property. While crossing the Lackawanna & Wyoming Valley Railroad tracks, he was crushed between two freight cars, sustaining the injuries from which he died.
Whether the decedent was in the course of his employment when fatally injured is a question of law. Hadfield v. American Society of Composers, Authors & Publishers, 174 Pa. Super. 394, 101 A.2d 423. In resolving that issue, there is no formula which may be applied to all cases. Coleman v. Fischer, 164 Pa. Super. 261, 63 A.2d 687. Where the injury occurs off the premises of the employer, compensation may not be awarded unless the employe was actually furthering the employer's business. Lints v. Delaware Ribbon Manufacturers, 173 Pa. Super. 540, 98 A.2d 643. It must appear that the act in which the employe was engaged was done by order of the employer, express or implied, and not simply for the convenience of the employe. Titus v. S. E. Sostmann & Co., 133 Pa. Super. 201,
[ 175 Pa. Super. Page 2682]
A.2d 580. Proof merely that the employe was permitted to do the act will not support an award. Krchmar v. Oakland Beach Co., 155 Pa. Super. 430, 38 A.2d 710.
Appellant's contention is that, in order to comply with the request to act as chauffeur for his employer's wife that afternoon, it was necessary for decedent to advance his usual lunch period, and that going out for lunch early and while the manufacture of the polish was still in progress did not constitute a departure from the employment. This contention is based upon assumptions of fact not found by the Board, nor supported by the evidence. The testimony warrants the conclusion that decedent was to make the trip to Olyphant after eating lunch at his regular time, and that he was actually not observing an earlier lunch period, but was ...