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WINTERS v. HERDT. (06/29/60)

June 29, 1960

WINTERS, APPELLANT,
v.
HERDT.



Appeals, Nos. 197 and 198, March T., 1959, from order of Court of Common Pleas of Beaver County, June T., 1956, Nos. 209 and 122, in case of James F. Winters v. Lester C. Herdt et al., and Jennie Lou Smith, administratrix of estate of Malvern M. Smith, deceased v. Same. Order affirmed.

COUNSEL

Charles McC. Barrickman, with him James B. Ceris, and Wallover and Barrickman, for appellants.

Edward J. McClain, with him Ledebur, McClain & Ledebur, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 400 Pa. Page 453]

OPINION BY MR. JUSTICE BOK.

One young man was killed and another injured when the agent of Herdt, original defendant, maladroitly cut the supporting bands of a kiln and it collapsed.

The administratrix and the injured man sued Herdt, who brought in as additional defendant Friedl-Elverson Pottery Company, on whose property the accident occurred and who employed the men. At the trial the jury awarded the injured plaintiff $50,000 and the administratrix plaintiff $20,665.63 against the additional defendant and exonerated the original defendant. Judgments were taken on these verdicts. The additional defendant then moved to mark the judgments satisfied. The court below made absolute the rule to do this and the plaintiffs have appealed.

The reasons for the court's action were that an award of workmen's compensation was made to each

[ 400 Pa. Page 454]

    man, that these awards are being paid, and that they supersede the common law remedy for negligence.

It appears that in the compensation proceedings the parties stipulated that the injured men were employees of the additional defendant and that the awards were made on that basis.

The plaintiffs argue that an award by agreement or stipulation is not res adjudicata and can be set aside for mistake of fact or law; that the true nature of the relationship of the plaintiffs with the additional defendant was that of contractor and contractee; and that by introducing evidence as to independent contractorship, at the hearing on the rule to mark the judgments satisfied, the ...


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