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MITCHELL v. HOLLAND FURNACE COMPANY ET AL. (03/18/59)

March 18, 1959

MITCHELL
v.
HOLLAND FURNACE COMPANY ET AL., APPELLANTS.



Appeal, No. 5, Oct. T., 1959, from order of Court of Common Pleas of Northampton County, Feb. T., 1958, No. 15, in case of Ruth Mitchell v. Holland Furnace Company et al. Judgment affirmed; reargument refused April 13, 1959.

COUNSEL

George D. Sheehan, with him John Paul Erwin, for appellants.

Bernard Frank, with him Scoblionko & Frank, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Watkins

[ 189 Pa. Super. Page 83]

OPINION BY WATKINS, J.

In this workmen's compensation case, the decedent, Peter Mitchell, was employed by the appellant, Holland Furnace Company, as a service salesman, whose business it was to solicit orders.

[ 189 Pa. Super. Page 84]

On July 7, 1955, he was working with one John Kidda, an assistant sales engineer for the employer, in the City of Northampton, Northampton County, Pennsylvania, soliciting orders on alternate sides of Dewey Avenue. When the decedent had finished his side of the street he went to the home of Louis Bartholomew, 2260 Dewey Avenue, where Kidda remarked about the "loaded" cherry tree in the garden, requested of Bartholomew and received permission to pick some cherries. Decedent did the same, climbed the tree by means of a ladder and while standing on a limb of the tree, fell to the ground. He died on the way to the hospital as the result of a fractured skull. Ruth Mitchell, the decedent's widow, and claimant appellee herein, filed a petition for workmen's compensation on behalf of herself and three minor dependents. The referee dismissed the petition and on appeal to the Workmen's Compensation Board, the appeal was sustained and an award granted. The Court of Common Pleas of Northampton County affirmed the decision of the board and entered judgment for the claimant. This appeal by the employer followed.

The questions before us on appeal are, under the Workmen's Compensation Law, (1) Does the evidence support the finding of the board that decedent's death was the result of an accident? And (2) does the evidence support the finding of the board that the decedent was in the course of his employment at the time of the fatal injuries?

In a well considered opinion by Judge WOODRING, the court below decided these questions in the affirmative and in affirming the judgment of the court below we adopt portions of that opinion which read as follows:

"In the case at bar decedent was at the home of a customer or prospective customer. ...


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