John M. Wolford, Erie, for appellant.
Howard N. Plate, Quinn, Leemhuis, Plate & Dwyer, Erie, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 99]
This is a workmen's compensation case. The controlling issue is whether claimant was injured in the course of her employment, Act of June 2, 1915, P.L. 736, § 301(e), as amended, 77 P.S. § 411, which presents a question of law: Rybitski v. Lebowitz, 175 Pa. Super. 265, 104 A.2d 161. The lower court affirmed an award by the Workmen's Compensation Board, and entered judgment in favor of the claimant. This appeal followed.
At the time of the accident, appellant operated a summer hotel at Cambridge Springs, Crawford County*fn1 Appellee was employed for the summer season under a written contract which provided, inter alia, that she should 'have charge of and prepare all cooking of food, pastries, cakes, et cetera, as may be required to feed and serve all patrons, help and management of said Hotel; to live on the premises and be available at all times for the efficient operation of the
[ 176 Pa. Super. Page 100]
kitchens of said Hotel' (Italics supplied.) At eight o'clock p. m. on Sunday, August 24, 1947, appellee had finished serving supper, and had made preparations to bake cakes for the next day. She told Mrs. Friedman, 'I am running up to the shower to change my clothes, and in case anything goes on in the kitchen you be around'. Mrs. Friedman replied, 'Certainly'. While in the shower, appellee slipped and fell against the bathtub, injuring her leg, back and head. She was not certain what had caused her to slip, stating, 'Maybe it was a piece of soap or something'. Appellee testified that her working hours were unlimited, sometimes eighteen to twenty hours a day. It was necessary for her to take several showers during that period because of the excessive heat, being customarily released by her employer for that purpose. She also testified that, after the accident, she returned to the kitchen and directed the baking operation.
Section 301(c) of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411, provides in pertinent part that the term 'injury by an accident in the course of his employment' shall include injuries 'sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer's business or affairs are being carried on, the employe's presence thereon being required by the nature of his employment'. Counsel for appellant contends that recovery by the appellee must be upon the basis that she was actually engaged in the furtherance of the
[ 176 Pa. Super. Page 101]
business of the employer when the accident happened, irrespective of where it occurred. His position is that the accident here under consideration was not caused by the condition of the premises or by the operation of the employer's business thereon.
Our Workmen's Compensation Act does not require that the injury 'arise out of the employment', but only that it occur 'in the course of the employment': Hale v. Savage Fire Brick Co., 75 Pa. Super. 454. The term 'course of employment' has been uniformly held to include intervals of time for leisure interspersed in regular working hours for rest or refreshment on the premises. In the early case of Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 A. 351, L.R.A.1918F, 888, during an interval of leisure on the premises, an employe struck a match for the purpose of lighting a cigarette. His clothes, saturated with oil, caught fire and he was fatally burned. In allowing compensation, the Supreme Court laid down the rule that acts of ministration by an employe to himself, performance of which while at work are reasonably necessary to his health and comfort, are ...