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KENNY v. THORNTON-FULLER COMPANY ET AL. (11/11/59)

November 11, 1959

KENNY
v.
THORNTON-FULLER COMPANY ET AL., APPELLANTS.



Appeal, No. 367, Oct. T., 1959, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1958, No. 2278, in case of Eleanor Kenny, widow of John Kenny, deceased v. Thornton-Fuller Company et al. Case remanded.

COUNSEL

Frank R. Ambler, for appellants.

Lawrence J. Richette, with him Meehan, Neil & Richette, for appellee.

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

Author: Hirt

[ 190 Pa. Super. Page 554]

OPINION BY HIRT, J.

This is the claim of the widow of John Kenny for herself and on behalf of two minor children, under our Workmen's Compensation Law. The board affirmed a finding of the referee that Kenny came to his death from accident in the course of his employment and the lower court entered judgment on an award as affirmed by the board.

John Kenny was employed by Thornton-Fuller Company as a mechanic. He was well qualified to make repairs on automobiles and trucks. He with a number of other employes, worked the shift 4:30 p.m. to 1:00 a.m. On March 28, 1957 he was directed by the shop foreman, one Hansberry, to change twelve tires on two trucks; each tire with the wheel upon which it was mounted, weighed 125 pounds. The operation consisted in transferring the wheels with the tires upon them from one truck to the other. There were no witnesses to the circumstances leading up to Kenny's death. The shop foreman called his superior one Pardi, on the telephone and summoned him to the plant. When Pardi arrived at approximately 9:30 he found the work on the trucks completed, and he then saw Kenny's dead body lying on a stretcher just inside the rear door of the shop. Kenny's passenger automobile had been

[ 190 Pa. Super. Page 555]

    driven from the street and was parked on company property with the front bumper at the doorway where Pardi saw Kenny's body lying. In Kenny's automobile there were eight new passenger-car tires, which Pardi believed to be company property - four on the back seat and four in the locked trunk.

Kenny on the day of his death apparently was in normal good health. He had not consulted a doctor for 12 years and never had given any evidence of a heart ailment. Pardi testified that he knew from experience the physical effort involved in the changing of the truck tires; that as supervisor of the service department he would have assigned two men to "that particular operation ... it's too much work for one man." It is conceded that a coronary occlusion was the cause of Kenny's death, due to a pre-existing hypertensive cardiovascular disease. And there is further undisputed medical testimony to the effect that the lifting or handling of the heavy truck tires by Kenny "may well have precipitated sudden death from this pre-existing heart disease."

The defendant's answer to the claimant's petition in this case admits there was an accident and the controlling question before us is whether the proofs support the conclusion of the Workmen's Compensation authorities that Kenny died from overexertion in the course of his employment, i.e., while changing the truck tires without assistance. It is still the law in a Workmen's Compensation case that when the death may have resulted from one of two causes, for only one of which the defendant employer is liable, ...


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