Appeal, No. 246, Oct. T., 1955, from judgment of Court of Common Pleas of Delaware County, Sept. T., 1953, No. 601, in case of Annie Babis, widow of Jacob Babis, Deceased v. Mount Jacob Cemetery Co., and New Amsterdam Casualty Co. Judgment reversed and record remanded. Appeal by claimant from decision of Workmen's Compensation Board refusing award.
Raymond A. White, Jr. and Raymond J. Porreca, for appellant.
Guy G. deFuria, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, and Woodside, JJ. (ervin, J., absent).
[ 179 Pa. Super. Page 618]
This workmen's compensation case involves the sole question whether at the time of the accident the claimant's deceased husband, Jacob Babis, was an employe of the defendant within the meaning of the Act. The referee, after hearing found that he was and entered an award. The board reversed the finding of the referee, and set aside the award. The lower court, after first remanding for more explicit findings, reversed the board and entered judgment for the claimant and this appeal by the employer and its insurance carrier followed.
On April 8, 1952, the deceased, while working on the cemetery grounds of the Mount Jacob Cemetery Company, a corporation owned by him, his wife, his son and his daughter-in-law, suffered fatal accidental injuries when he was struck by a truck. It is admitted that the deceased worked for and received pay from the defendant corporation, the only problem being whether he did so as an executive officer or as an employe. The claimant had the burden of showing that at the time of his fatal injury, her husband was an employe of the defendant corporation. Sechrist v. Kurtz Bros., 147 Pa. Superior Ct. 214, 24 A.2d 128. Where the Board finds against the one who has the burden of proof, our review is limited to determining whether its findings of fact are consistent with each other and with the conclusions of law, and whether its order can be sustained without a capricious disregard of the competent evidence. Bartman v. Jones and Laughlin, 163 Pa. Superior Ct. 31, 35, 60 A.2d 565. In this case we are concerned only with determining whether the findings of fact are consistent with each other. The board found inter alia "3. That on April 8, 1952, the decedent was self-employed under the name of the Mount Jacob Cemetery Company and there is no credible evidence
[ 179 Pa. Super. Page 619]
showing that he was an employee of the company at any time." If this were the only finding in the case, of course, the disallowance of the award was proper. However in view of other and inconsistent findings, the case must be sent back to the board for further consideration and determination.
Ordinarily, the test for the employer-employe relationship is only whether the workman is subject to the defendant's control or right of control not only with regard to the work to be done but also with regard to the manner of performance. Cookson v. Knauff, 157 Pa. Superior Ct. 401, 404, 43 A.2d 402. Where an executive officer is involved the problem broadens to include a determination of whether he performed services having no relation to his executive position and not incidental thereto and whether he is compensated for performing these services as distinguished from his compensation as an executive. Gray v. Gray Printing Co., 87 Pa. Superior Ct. 302.
In the Gray case, the deceased was one of four stockholders in the defendant corporation, each owning equal shares, and each serving as an officer. They mutually agreed to perform certain services for the corporation and they were paid for these services but not as executive officers. Gray was killed while performing one of these duties. We held that compensation was properly due the widow. So too, in Eagleson v. Harry G. Preston Co., 265 Pa. 397, 109 A. 154, our Supreme Court held that a claimant was not barred by the mere fact that her deceased husband was one of the directors of defendant corporation, he being a salesman and paid as such at the time of the accident. These cases as well as the leading case of Carville v. ...