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BOGAN v. SMOOTHWAY CONSTRUCTION COMPANY (03/20/57)

March 20, 1957

BOGAN
v.
SMOOTHWAY CONSTRUCTION COMPANY, APPELLANT.



Appeal, No. 105, April T., 1956, from order of Court of Common Pleas of Butler County, June T., 1955, No. 34, in case of Erma Bogan v. Smoothway Construction Company. Order affirmed in part, with directions.

COUNSEL

John F. Will, Jr., for appellant.

Saul J. Bernstein, with him Irving Sikov, and Bernstein & Campbell, for appellee.

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

Author: Rhodes

[ 183 Pa. Super. Page 173]

OPINION BY RHODES, P.J.

This is an appeal in a workmen's compensation case. The following are the principal issues: (1) Whether deceased, the husband of claimant, who drove his own truck for the defendant road construction company, was an independent contractor or an employe of defendant at the time of his death, and (2) whether his death was due to natural causes or to an accidental injury, assuming deceased was employed by defendant.

[ 183 Pa. Super. Page 174]

The evidence before the compensation authorities showed little contradiction as to the basic facts. The defendant corporation was engaged in a road construction job at North Apollo near Pittsburgh. Defendant owned three trucks and employed drivers to operate them. On occasion additional trucks were used; deceased's truck was one of these. Deceased, who owned and operated his truck, supplied the gasoline and oil; defendant did not withhold income tax or social security tax from payments made to deceased. Deceased's duties were to haul slag, stone, or asphalt in his own truck. Deceased met his death on October 31, 1952, about 11:30 a.m. He had been directed that morning to use his truck to haul a 1,000 gallon empty steel water tank weighing 500 pounds from North Apollo to defendant's stock yard nearby. The tank was unloaded from deceased's truck by defendant's crane. William Gamble, who had been hired to drive his own truck for defendant, stood about fifteen feet behind deceased's truck and observed the unloading operation. After deceased had placed a "sling" around the tank, and after it had been lifted off the truck defendant's craneman called to deceased to take hold of the tank so it would not swing in the wind and damage a spigot on the lower side. Ordinarily the craneman's assistant would have steadied the tank, but he was absent on this occasion. Defendant's president testified that it was deceased's job to connect the "sling" but not to steady the tank in unloading. The crane operator had authority to give orders to deceased in crane operations connected with unloading. Gamble testified that he saw deceased endeavor to hold the tank, that a strong wind was blowing, that the tank swung and struck deceased near his left eye, that deceased fell to the ground, and that, after a feeble struggle, he appeared to collapse.

[ 183 Pa. Super. Page 175]

On cross-examination Gamble stated that he did not actually see the tank strike deceased, but that he deduced this from the mark over deceased's left eye. Deceased was taken to a nearby doctor who pronounced him dead.

At the request of the coroner, Dr. Ralph M. Weaver performed an autopsy that evening. In Dr. Weaver's opinion death was due to the rupture of a bleb on deceased's lung. In answer to a hypothetical question, Dr. Weaver stated that the exertion of steadying a 1,000 gallon tank swinging in the wind would certainly be sufficient to cause a bursting of one of the blebs found on the lungs. Dr. Weaver further gave as his positive opinion (see Hodgdon v. Kerr Salt Company, 176 Pa. Superior Ct. 177, 180, 106 A.2d 621) that the struggle with the tank was such an exertion as to rupture the bleb on the lung and cause death. On cross-examination, Dr. Weaver also stated that the bleb on the lung could have ruptured at any time without unusual exertion.

The referee concluded that deceased was an independent contractor, and that death was not due to an accident but to natural causes. On appeal by claimant, the Workmen's Compensation Board affirmed the conclusions of the referee. On further appeal, the Court of Common Pleas of Butler County concluded that deceased was a temporary employe of defendant during the unloading of the truck, and that there was not sufficient evidence to justify the referee's conclusion, affirmed by the board, that death was due to natural causes. The case was remanded to the board for ...


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