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MUIR v. WILSON COAL COMPANY ET AL. (03/22/61)

March 22, 1961

MUIR
v.
WILSON COAL COMPANY ET AL., APPELLANTS.



Appeal, No. 359, Oct. T., 1960, from judgment of Court of Common Pleas of Northumberland County, Sept. T., 1960, No. 80, in case of Alice B. Muir, widow of Norman W. Muir, deceased, v. Wilson Coal Company et al. Judgment affirmed.

COUNSEL

Penrose Hertzler, with him Richard Henry Klein, for appellants.

Sidney Apfelbaum, for appellee.

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

Author: Ervin

[ 194 Pa. Super. Page 488]

OPINION BY ERVIN, J.

In this workmen's compensation case the referee made an award which was affirmed by the board and the court below. This appeal followed.

The only question involved is whether the claimant's decedent, Norman Muir, was engaged in the furtherance of the employer's business and affairs, and, therefore, within the course of his employment, at the time he sustained the accidental injuries which directly caused his death.

On October 17, 1956, at about 7:35 a.m., the decedent and other crew members were passengers in a car owned and operated by one Paul Roth, a fellow crew member, and were on their way to Pennag Colliery. On this occasion the automobile, while being thus operated on a public highway by the said Paul Roth, collided with the rear of a coal truck-trailer and decedent suffered serious injuries which caused his death on November 7, 1956.

The general ruling is that an employee who is injured on his way to work, or before reachig the premises of his employer, cannot recover: Eberle v. Union Dental Co., 390 Pa. 112, 134 A.2d 559; Smith v. Frederick Investment Co., 152 Pa. Superior Ct. 534, 33 A.2d 510: Lints v. Delaware Ribbon Manufacturers, Inc., 173 Pa. Superior Ct. 540, 98 A.2d 643. He must be actually engaged rather than constructively engaged in the business or affairs of his employer: Maguire v. James Lees & Sons Co., 273 Pa. 85, 116 A. 679.

The board and the court below found that the present case fell within an exception to the general rule because of the peculiar factual situation present. The

[ 194 Pa. Super. Page 489]

    board considered two factual points to be most persuasive and cogent factors bearing upon the question as to whether the decedent at the time of the accident was actually engaged in furthering the business and affairs of the employer-defendant. The first one was that the decedent's starting time for work in the morning was 7:00 a.m. He was paid from 7:00 a.m. to 2:00 p.m. He was supposed to leave his home at or before 7:00 a.m. and he did not normally report at the defendant-company's office in Shamokin but went to Pennag Colliery (not owned or operated by defendant) to pick up certain tools and equipment and then proceeded to the actual physical place of work on survey jobs, the location of which had been previously determined by the chief engineer of the defendant. The accident which resulted in Muir's death occurred before they reached Pennag Coliery but it occurred at 7:35 a.m., some 35 minutes after the commencement of pay time. The employer must have had some good reason for paying Muir from 7:00 a.m., when he was supposed to depart from his home. The pay was started at this point probably because of the fact that Muir would not always be going to the same ...


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