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KEIM v. BURKHOLDER ET AL. (12/28/56)

December 28, 1956

KEIM
v.
BURKHOLDER ET AL., APPELLANTS.



Appeal, No. 216, April T., 1956, from judgment of Court of Common Pleas of Somerset County, 1956, No. 314, in case of Edna Keim v. Burkholder and Johnson et al. Judgment affirmed.

COUNSEL

Robert G. Rose, with him Francis A. Dunn, and Fike & Cascio, for appellants.

Leland W. Walker, with him Walker & Kimmel, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Wright

[ 182 Pa. Super. Page 462]

OPINION BY WRIGHT, J.

In this workmen's compensation case the referee made an award which was affirmed by the Board and the court below. This appeal followed.

Appellant employers are the operators of a drift mine in which both Robert Keim and Roy Yoder worked as coal miners. In addition to his duties in the mine, Yoder was also employed to care for the horse and mules which were used at the mine for pulling coal cars. For performing this service he received extra compensation in the amount of $3.00 a head per month. The livestock was kept in a stable belonging to one of the appellants, which stable was located next door to Yoder's dwelling and some two miles from the mine. It was Yoder's duty to water and feed the animals in the morning and evening. On December 29, 1954, because of an injury to Yoder's hand, appellants made arrangements with Keim to take care of the animals during the period of Yoder's disability. It was understood that, to facilitate bookkeeping, appellants would continue to give Yoder the extra pay he normally received for looking after the livestock and that Yoder would pass it on to Keim. The latter's dwelling was located approximately one thousand feet from the stable. Keim cared for the livestock on December 30, and 31, 1954. On January 1, 1955, at about 7:00 a.m., Keim left his home and started to walk along the public highway toward the stable. A passing automobile suddenly swerved across the road, striking and injuring Keim so severely that he died some twenty hours later.

The referee's ninth finding of fact was: "... that the special services for which decedent was engaged by the defendant required his presence on the State highway where he met with fatal injuries; that he was

[ 182 Pa. Super. Page 463]

    occupying himself at that time consistently with his contract of employment in a manner reasonably incident to his employment; that he was, therefore, engaged at work in the course of his employment with the defendant at the time of the accident". His second conclusion of law was: "That since the decedent met with accidental injuries while at work in the course of his employment with the defendants that resulted in his death, his dependent widow is entitled to recover compensation ..."

In its opinion the Board stated: "It is palpably clear that the claimant [claimant's decedent] was not walking on the highway early New Year's day on a personal mission or for pleasure, but was going to defendants' barn to tend defendants' livestock, in the interests of the defendants". The Board further stated: "... the decedent had embarked upon a special errand of service for his employers' livestock, as it was necessary to feed and water them, and a duty ordinarily not included in his work as a miner. It was upon this mission of service, in the interests of the defendants, when tragedy overtook the decedent. We have no hesitancy in holding that under these special circumstances, as a matter of law, the claimant is entitled to compensation, even though the decedent had not yet entered upon the property controlled by the defendant. We agree with the referee that the decedent was engaged in the furtherance of his employers' interests".

Appellants contend "that decedent's death occurred outside the course of his employment, so as to eliminate liability on behalf of the defendants". It is true that, since the accident occurred off the employer's premises, it must appear that the injured employe was actually engaged in the furtherance of ...


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