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SUSMAN v. KAUFMANN'S DEPARTMENT STORE (12/28/56)

December 28, 1956

SUSMAN
v.
KAUFMANN'S DEPARTMENT STORE, APPELLANT.



Appeal, No. 231, April T., 1956, from judgment of Court of Common Pleas of Westmoreland County, April T., 1956, No. 6, in case of Edmund Susman v. Kaufmann's Department Store. Judgment affirmed.

COUNSEL

Gilbert J. Helwig, with him Reed, Smith, Shaw & McClay, for appellant.

Christ. C. Walthour, Jr., with him Kunkle & Trescher, for appellee.

Before Hirt, Gunther, Wright, Woodside, and Carr, JJ. (rhodes, P.j., and Ervin, J., absent).

Author: Wright

[ 182 Pa. Super. Page 469]

OPINION BY WRIGHT, J.

In this workmen's compensation case Edmund Susman, the claimant, was severely injured when a station wagon in which he was a passenger was involved in a collision. He filed a claim for compensation from his employer, Kaufmann's Department Store. An award was made by the referee and affirmed by the Workmen's Compensation Board. Upon appeal to the Court of Common Pleas of Westmoreland County the order of the Board was affirmed, and judgment was entered in favor of the claimant. The employer has appealed.

The claimant resided in Jeannette, Pennsylvania. In March 1954, during the period when the regular drivers for Kaufmann's were on strike, Samuel Steffey, a neighbor of claimant, and temporarily on furlough from his regular work with the Pennsylvania Railroad, secured a job with Kaufmann's as the driver of a station wagon which was used to deliver and pick up parcels. Appellant's employment supervisor testified that "this was a special set-up which we called a 'special messenger detail'". After Steffey had been working for several months, he was requested to find someone in the vicinity of Jeannette "to help me out with my deliveries at night ... someone close to home to work with me, because I had a large area out that way to cover. And almost every night I had pick-ups, or pack-ages,

[ 182 Pa. Super. Page 470]

    to take out, and they didn't like to see me doing it by myself". Steffy "contacted quite a few fellows, but no one wanted to work". He finally got in touch with Susman, informing him, inter alia, "that he would have transportation to and from work as long as I had the station wagon with permission". Claimant was thereafter*fn1 hired by Kaufmann's as a helper on the station wagon. He testified that he asked Miss Mason, who was in charge of the drivers, "if it was all right to ride back and forth in it, and she granted permission as long as Sam had the wagon". Claimant did ride back and forth with Steffey from the time of his employment until the date of the accident on all but two working days. On one of these days claimant had to leave work early because of a funeral. On the other day the station wagon was in the garage for repairs. On October 30, 1954, at 6:30 p.m., claimant was on his way home with Steffey when the collision occurred.

The referee's fifth finding of fact was "that the claimant sustained accidental injuries during the course of his employment with the defendant while riding in the company's station wagon which was engaged in the furtherance of the defendant's business". In its opinion the Board stated: "It is important to take cognizance of the fact that the accident occurred during the long drawn out department stores' drivers' strike. Delivery of merchandise was accompanied by the threat and danger of violence. It is reasonable to believe that the employment of station wagon personnel was accompanied by some indulgences on the part of the employer. We believe that the arrangements in the instant

[ 182 Pa. Super. Page 471]

    case for the employment of the claimant contemplated his use of the station wagon as a medium of transportation to and from work, because he lived in such close proximity to the driver". And again in conclusion: "We cannot lose sight of the fact that the defendant was having a serious labor dispute at the time that the claimant accepted employment. Living in Jeannette, it is reasonable to believe that transportation to work from claimant's home in Jeannette was a factor in the employment ...


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