Appeal, No. 26, Feb. T., 1958, from order of Court of Common Pleas of Wayne County, April T., 1957, No. 73, in case of Gertrude B. Spry, widow of Robert L. Spry, deceased, v. Bernard J. Polt. Appeal dismissed.
Lester R. Male, for appellant.
Milford J. Meyer, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 186 Pa. Super. Page 327]
In this workmen's compensation case, claimant's decedent was fatally injured while operating his truck on the public highway. Finding that, at the time of the accident, decedent was engaged in furthering his employer's business, the Referee made an award, which was affirmed by the Board. Upon appeal to the Court of Common Pleas, a decree was entered affirming the decision of the Board. This appeal followed. The factual situation appears in the following excerpt from the opinion of the Board:
"The decedent was employed as a plumber by defendant at an average wage of $68.00 per week, and he had been so employed by defendant for about 6 1/2 years as a service and maintenance man. This job made it
[ 186 Pa. Super. Page 328]
necessary for him to cover a territory with a radius of about 35 miles of defendant's premises. In addition to working a regular shift decedent was subjected to 24 hour call. In order to facilitate this arrangement, decedent was required to provide his own truck which had to be prepared to answer emergency calls day and night. In addition to his hourly rate as a plumber, defendant paid him 12 cents a mile for the use of his truck. There were five other employees of defendant who worked under the same arrangements.
"On the date in question, March 10, 1956, decedent and a fellow employee, Leon Reed, had been sent on a job about 12 miles distant from defendant's office. Upon completion of said job and while enroute back to defendant's plant, decedent had tire trouble and it was necessary to change it. After reaching the plant, he left Leon Reed off and was instructed to put away the equipment that was on his truck. This was about 11:30 a.m. Before he did anything else, decedent went to Kiegler's Gas Station in order to replace the tire that had been damaged earlier in the day. Kiegler did not have the tire decedent wanted... Decedent left and, while traveling south in the direction of employer's plant and his home, he met with the fatal accident at about 11:40 a.m....
"The evidence adduced at the hearing showed the above recited facts and that decedent had used Kiegler's Gas Station for the upkeep of his truck. It also disclosed that decedent was carried on the payroll until noon".
While the question whether a decedent was in the course of his employment when fatally injured is one of law, there is no formula which may be universally applied: Rybitski v. Lebowitz, 175 Pa. Superior Ct. 265, 104 A.2d 161. Many cases involving this ...