Appeal, No. 53, March T., 1955, from judgment of Court of Common Pleas of Union County, Jan. T., 1955, No. 6, in case of Ralph W. Greap v. J.J. Oberdorff. Judgment affirmed.
Clair Groover, for appellant.
Charles Wolfe Kalp, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 178 Pa. Super. Page 154]
This is an appeal from the order of the lower court affirming the award of the Workmen's Compensation Board in favor of the claimant, Ralph W. Greap, against J.J. Oberdorff, defendant. The board affirmed the order of the referee.
The single question presented on this appeal is whether there was sufficient competent evidence to sustain the finding of the referee and the board that on February 27, 1953, Ralph W. Greap was an employe of J.J. Oberdorff. The defendant contends that there is no basic finding of fact either by the referee or by the board that the relationship of employer and employe existed and argues that Ralph W. Greap was an independent contractor. The board, after reviewing the evidence, stated: "Our review of the record discloses a direct conflict of testimony. The conflict was
[ 178 Pa. Super. Page 155]
resolved in favor of the claimant and we find no error warranting the reversal of the referee's judgment of the credibility of the evidence. The claimant testified that he had worked for the defendant at an hourly wage of $1.00 and that he worked about 40 hours per week. This testimony was sufficient to support the finding of an employer-employee relationship at the time of claimant's accident on February 27, 1953. Further, there is no definite evidence that claimant signed a contract for work on the operation where he was injured and the defendant's vague testimony as to his lumbering records and methods of payment does not seem entitled to credence." In our opinion this was a sufficient finding of fact to cover the fundamental question involved in this case.
There was a definite conflict in the evidence as to whether a written contract for this particular job had been signed by the plaintiff. The plaintiff testified that he had previously signed a contract for a former job but that he did not sign a second agreement covering this job. Three fellow workmen were called as witnesses by the defendant and it is significant that each one of them testified that he did not see the plaintiff sign the second agreement and that he did not know what terms the plaintiff was working under when he was injured. If they were partners in this venture with the plaintiff, they could hardly have testified in such manner. The defendant failed to produce a signed written contract for the job upon which the plaintiff was injured. He produced an unsigned copy without satisfactorily accounting for the original. He testified as follows: "Q. Had Ralph Greap signed that contract? A. I would say yes, I think he signed it when we operated that second job." The writing contained a provision that the defendant was to pay $30.00 per thousand feet of piled, sawed lumber. There was ample
[ 178 Pa. Super. Page 156]
evidence to justify the finding of the referee and the board that such a contract had not ...