Appeal, No. 279, Oct. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1954, No. 58, in case of Agnes K. Brown v. Ross Motor Lines and Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company. Judgment affirmed.
Harry R. Mayer, with him John A. M. McCarthy, Philadelphia, for appellant.
Francis Logan, with him Robert C. Duffy, Philadelphia, for appellees.
Before Rhodes, P. J; Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
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William Thomas Brown, while driving a truck in the course of his employment with defendant, was killed on March 9, 1952 in a collision with another truck. His mother, asserting dependency upon him for support, filed her claim petition for compensation from the defendant. The Board, on appeal from an order of disallowance by the Referee, found that "The defendant-employer's place of business was in Pennsylvania and claimant was a Pennsylvania employee." The Board made this additional finding: "The decedent's employment required him to make a temporary trip outside of Pennsylvania for a period not in excess of one week at the time he was fatally injured while in the course of his employment." Based upon these findings the Board entered an award for partial dependency under Section 101 of the Act of June 2, 1915, P.L. 736, as amended, 77 PS § 1. On defendant's appeal from that order the lower court concluded as a matter of law that the Board's finding that decedent was a Pennsylvania employe within the exception of § 101 of the Act, was not supported by the evidence. The court accordingly reversed the Board and entered judgment for the defendant employer. Viewing the testimony in the light most favorable to the claimant, as we must (Baumann v. Howard J. Ehmke Co., 126 Pa. Superior Ct. 108, 112, 190 A. 343), we are obliged to affirm the judgment.
These are the undisputed facts: The decedent Brown was a resident of Rosehill, North Carolina. He applied for employment by telephone from his home and at defendant's request came to Philadelphia on February 28, 1952, where he was hired by the defendant as a truck driver. Defendant had an office also in Pompano, Florida. Its business was that of a common carrier of freight by truck over the highways. Decedent's
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work consisted in hauling produce or other cargoes between Philadelphia and points in Florida, and along the Eastern Seaboard. When making deliveries to or from points in Florida he came to Philadelphia at least once a week. He was in Philadelphia more frequently when hauling along the Eastern Seaboard. The testimony of defendant's president is that "He made trips back and forth and when he came to Philadelphia he was paid." Immediately prior to his fatal trip he had returned from Pompano to Philadelphia and his truck was serviced there. He then was instructed to go to Linden, New Jersey, for a load of produce consigned to The Food Fair in Miami, Florida. In the course of transporting this shipment in defendant's truck he died from accident on the Ogeechee Road near Savannah, Georgia.
Section 101 of the Act, supra, which denies compensation for accidents occurring outside the Commonwealth, excepts from its operation "... accidents occurring to Pennsylvania employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over ninety days, when such employes are performing services for employers whose place of business is within the Commonwealth." In Bock v. D. B. Frampton & Co. et al., 105 Pa. Superior Ct. 380, 161 A. 762, it was said: "It seems clear that the term 'Pennsylvania employes' refers only to employes who perform the major portion of their services within the Commonwealth." This test to be applied in construing the provision of the Act was followed in Lutz v. State Work's Ins. Fund et al., 124 Pa. Superior Ct. 149, 188 A. 364, and is now settled law. An employe under contract with a Pennsylvania employer is not a Pennsylvania employe, within the contemplation of § 101 of our Workmen's Compensation Law, unless in the performance of his duties he devotes most
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of his time to the work of his employer within this State. Cf. Stewart v. Thomas Earle & Sons, Inc., 150 Pa. Superior Ct. 591, 29 A.2d 239. This construction of the exception of the Act was approved and applied in ...