Appeal, No. 340, Oct. T., 1959, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1958, No. 123, in case of Madeline G. Ristine, widow of Joseph V. Ristine, deceased v. E. F. Moore et al. Judgment reversed.
Paul H. Ferguson, with him Lowell A. Reed, Jr., for appellants.
Francis T. Dennis, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 190 Pa. Super. Page 611]
This is an appeal from an order of the court below affirming a decision of the Workmen's Compensation Board wherein the claimant was awarded compensation as the widow of the deceased who was killed while crossing a public highway on his way home from his place of employment. Claimant's decedent died as a result of injuries suffered when he was struck by an automobile on the evening of June 21, 1956. Claimant filed her petition on February 28, 1957, seeking compensation on the basis that her husband was in the course of his employment when he was struck down. The defendant denied the claim of employment at this time.
After hearing, the referee found that the decedent's death was the result of an accident sustained in the course of his employment and awarded compensation. This adjudication was appealed to the Workmen's Compensation Board, alleging error in failing to find that
[ 190 Pa. Super. Page 612]
decedent was not in the course of his employment at the time of the accident. The board modified the adjudication by specifically finding that the decedent was endeavoring to cross a public highway to arrive at a destination to perform additional duties for the defendant. The award was affirmed and an appeal was taken to the court below which affirmed the board. Hence this appeal.
The controlling facts are not in dispute. The defendant is a dealer in automobiles in Conshohocken, Pennsylvania and in connection with the dealership operated a garage. In addition to dealing in new automobiles, defendant operated repair trucks on a particular portion of the Pennsylvania Turnpike twenty-four hours a day. Decedent's employment with defendant was dual in character in that his daily duties were those of a general utility man around the garage while during some evenings, together with three other persons, he might be called at any hour by the drivers of Turnpike trucks for assistance with disabled vehicles on the Turnpike. The drivers of the trucks were supplied with the telephone numbers of each of the four persons who could be called. The first of such numbers was the home of the decedent; the second was the home of Edward F. Moore, Jr.; the third the home of Matthew J. Moore, and the fourth the home of a relief driver on the Turnpike work. Decedent lived closest to the garage, a distance of 150 or 200 feet. Apparently, decedent was first on the list because he was the type of person who was usually home when not working at the garage. However, decedent was not requested or expected to remain home for the purpose of receiving such calls except on those occasions when it was known in advance that the other persons on the list would not be available. Claimant testified that these calls came in a couple of times a week as a rule
[ 190 Pa. Super. Page 613]
but on the night of the accident, decedent received no ...