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WEHR v. PHILADELPHIA DERRICK & SALVAGE CORPORATION. (04/13/60)

April 13, 1960

WEHR, APPELLANT,
v.
PHILADELPHIA DERRICK & SALVAGE CORPORATION.



Appeal, No. 45, Oct. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1959, No. 3389, in case of Mrs. Julia M. Wehr, widow of George G. Wehr v. Philadelphia Derrick & Salvage Corp. et al. Order affirmed; reargument refused May 2, 1960.

COUNSEL

Lloyd A. Good, Jr., with him Wesley H. Caldwell, and Roper & Caldwell, for appellant.

Peter P. Liebert, III, with him John J. McDevitt, III, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Wright

[ 192 Pa. Super. Page 162]

OPINION BY WRIGHT, J.

This is a workmen's compensation case. We are concerned with an appeal by the widow-claimant from an order of Court of Common Pleas No. 1 of Philadelphia County affirming a decision of the Workmen's Compensation Board which had dismissed the claim petition.

Appellant's theory is that her husband, George G. Wehr, was an employe of the Philadelphia Derrick & Salvage Corporation, and that he met his death in an automobile, accident on June 8, 1955, while in the course of his employment. The claim petition, filed December 5, 1955, alleges that the decedent had made a trip to the Havre de Grace Shipyard on his employer's business and was returning to Philadelphia by automobile when the accident occurred on U.S. Route 40 near Elkton, Maryland. An answer was filed denying the material averments of the claim petition. After taking testimony at hearings on June 12, 1956, December 11, 1956, and March 5, 1957, the referee made an award, March 12, 1957, based upon findings of fact that claimant's decedent was in the employ of the defendant corporation, and that he was in the course of his employment at the time of his death. Following the insurance carrier's appeal, and upon petition of the

[ 192 Pa. Super. Page 163]

    claimant, the board, September 25, 1957, remanded the record. After taking additional testimony at a hearing on January 14, 1958, the referee, April 9, 1958, made a second award. The insurance carrier again appealed. On May 6, 1959, the board filed its decision vacating certain of the referee's findings of fact, and substituting findings of its own to the effect that claimant's decedent "was at the Havre de Grace Shipyard primarily on a personal mission disassociated from business of the defendant-corporation", and that he was "an owner rather than an employe". As a result of its factual findings, the board concluded that decedent's widow was not entitled to benefits and dismissed the claim petition. The widow-claimant then appealed to the court of common pleas, which tribunal, December 28, 1959, affirmed the board's decision.

In an opinion handed down this day in Hurlburt v. Fidelity Window Cleaning Co., 192 Pa. Superior Ct. 152, 160 A.2d 251, we restated the legal principles which govern cases of this nature. Claimant has the burden to prove all of the elements necessary to support an award. We must view the evidence in the light most favorable to the party having the board's decision. Where the board has made a determination against the party having the burden of proof, the question before the court on appeal is whether the board's findings of fact are consistent with each other and with its conclusions of law, and can be sustained without a capricious disregard of the competent evidence. It was for the board as the final fact finding body to determine from all the evidence whether claimant had sustained the burden resting upon her, and its finding that she had not is a pure finding of fact. As pointed out by Judge WOODSIDE in Chuplis v. Steve Shalamanda Coal Co., 192 Pa. Superior Ct. 76, 159 A.2d 520, it is the prerogative of the board, and not the court, to weigh the testimony of the witnesses, and the board is not

[ 192 Pa. Super. Page 164]

    required to accept even uncontradicted testimony as true. In the light of these well-established principles, we perceive no error in the decision of the court below. There is no material inconsistency in the findings and conclusions of the board in the instant case, nor is there a capricious disregard of competent evidence. ...


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