Appeal, No. 341, Oct. T., 1957, from judgment of Court of Common Pleas of Lehigh County, April T., 1957, No. 1 W.C.B., in case of Francis H. Ede, Jr. v. Ruhe Motor Corporation and Standard Accident Insurance Co. Judgment vacated and record remanded.
Robert F. Blanck, with him Boyd H. Walker, Glenn A. Troutman, and McWilliams, Wagoner & Troutman, for appellants.
David B. Skillman, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 605]
This is a workmen's compensation case. On May 28, 1954, Francis H. Ede, Jr. fell and fractured his right ankle while making a business call in the course of his employment as a car salesman for the Ruhe Motor Corporation. His weekly wage at the time of the accident was $75.71. An open agreement was executed calling for the payment of compensation for total disability. The employer filed a petition to terminate the agreement as of September 13, 1954.*fn1 The Referee dismissed the petition to terminate, and directed the employer to pay compensation for total disability to September 17, 1954, and for fifteen percent partial disability thereafter. Upon the employer's appeal, the Board modified the finding of partial disability to ten percent, and ordered payment on that basis. Upon the employer's appeal
[ 184 Pa. Super. Page 606]
to the court of common pleas, judgment was entered on the Board's award. This appeal by the employer to the Superior Court followed.
The testimony before the Referee established that on or about June 25, 1954, appellee and his father, a lawyer engaged in active practice in Northampton County, commenced a partnership business known as the Ede Motor Company. Appellee terminated his employment with the Ruhe Motor Corporation for the purpose of managing this new venture. Since July 2, 1954, appellee has received payments of $100.00 per week, $20.00 of which was withheld for income tax. The following appears in the testimony (italics supplied): "Q. Mr. Ede, you have been earning at least $100.00 a week since July second. A. That is correct".
Dr. Reno, an orthopedic specialist, testified on behalf of appellant that appellee still suffered from instability of the ankle joint secondary to a widening of the mortise, but that "for his occupation at that time he was able to continue his duties". This witness stated on cross-examination that appellee's disability "for general work" would be approximately fifteen percent. Dr. White, appellee's attending physician, testified on behalf of appellant that the date of his last treatment was September 17, 1954, and that appellee then had no permanent disability. On cross-examination, Dr. White stated that, "with reference to general disability", appellee still had "a slight widening of the ankle mortise", but that there was no disability so far as appellee's ordinary occupation was concerned. Appellee called no medical witnesses. Both appellee and his father testified that the $100.00 weekly payments were drawn against appellee's half of the anticipated profits. The father further testified that the business had operated at a loss; that appellee "could have been replaced at $35.00 a week"; and that "if I didn't let him have it
[ 184 Pa. Super. Page 607]
one way I would have to take it out of the other pocket ...