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BAUR v. MESTA MACHINE COMPANY. (06/30/58)

June 30, 1958

BAUR, APPELLANT,
v.
MESTA MACHINE COMPANY.



Appeal, No. 31, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 1695, in case of Hazel E. Baur, administratrix of the estate of Frank W. Baur, deceased v. Mesta Machine Company. Judgment affirmed.

COUNSEL

Clyde E. Donaldson, for appellant.

Henry E. Rea, Jr., with him Alan D. Riester, and Brandt, Riester, Brandt & Malone, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 393 Pa. Page 381]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Plaintiff instituted an action in trespass to recover for the death of her husband which allegedly resulted from the negligence of his defendant employer, Mesta

[ 393 Pa. Page 382]

Machine Company. The court below sustained the defendant's preliminary objections to the plaintiff's complaint upon the ground that plaintiff's exclusive remedy was under the Workmen's Compensation Act, and, accordingly, dismissed the complaint.

The decedent, regularly employed as a steel chipper in the Roll Shop of defendant's plant, on February 29, 1956, (the date of his death), was scheduled to work an eight hour shift beginning at 3:00 P.M. Decedent reported for work at the proper hour, but, after about fifteen minutes on his job, became bothered by a pain in his arms and chest. No unusual physical exertion or mishap was alleged to have brought on his discomfort. He immediately proceeded to a dispensary provided by the employer and to which employees were directed to report for care if they were injured or became ill while at work, related his symptoms to the attendant in charge, and requested his assistance. The attendant kept decedent in his care and custody until 6:00 P.M., during which time the plaintiff alleges "decedent's physical condition deteriorated and the pain in his arms and chest increased so that it was difficult for [him] to breathe." At that time, the decedent was placed in a taxicab by the attendant who instructed the driver to take him to his home. While enroute, the driver, having noticed that decedent had become unconscious, immediately proceeded to a hospital where it was determined that the decedent had died as the result of a coronary occlusion.

Plaintiff argues that since decedent's death was not the result of an industrial "accident", the Workmen's Compensation Act*fn1 is inapplicable, and that the common

[ 393 Pa. Page 383]

    law right to sue an employer for an injury not encompassed by the Act, but caused by his negligence, is retained by ...


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