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MILLER v. SCHIFFNER ET AL. (09/12/61)

September 12, 1961

MILLER
v.
SCHIFFNER ET AL., APPELLANTS.



Appeal, No. 223, Oct. T., 1961, from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1961, No. 2, in case of Zena R. Miller, widow of Lester Miller, v. Fred Schieffner & Sons et al. Judgment affirmed.

COUNSEL

David B. Skillman, for appellants.

I. Raymond Kremer, with him Henry Villa, and Reabuck and Villa, for appellee.

Before Ervin, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., and Wright, J., absent).

Author: Ervin

[ 196 Pa. Super. Page 86]

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.

By this appeal we are asked to determine whether the evidence presented by claimant met the burden of proving (1) that her husband was actually engaged in the furtherance of the business of his employer at the time of his death; (2) that her husband was killed by an "accident" within the meaning of the act; and (3) that her husband did not die as a result of the natural progress of a mortal disease. The referee and the board found these questions for the claimant. Our problem is to determine whether there was legally competent evidence to support the findings: Curran v. Knipe & Sons, Inc. et al., 185 Pa. Superior Ct. 540, 545, 138 A.2d 251.

As the board found for the claimant, we must view the evidence in the light most favorable to the claimant and give her the benefit of all inferences reasonably deducible therefrom: Rice v. Public Meat Market, 166 Pa. Superior Ct. 328, 329, 70 A.2d 443.

Claimant's husband, Lester Miller, died suddenly in the front yard of his home about 9:30 a.m. on December 20, 1951. He had been attempting to start his employer's truck, which was standing in the front yard and which his employer had loaned to him for the purpose of getting him to and from his work. On the morning of the death, at about 6:30 he went out to

[ 196 Pa. Super. Page 87]

    start the motor of the truck. He returned to the house and said to his wife, "I cannot get the truck started." He stayed in the house and drank a cup of coffee, which was his usual breakfast, and following this he resumed his efforts to start the truck. From 6:30 a.m. to 9:30 a.m. he tried to get the truck started. Four or five times he drew water from a well by pulling up a bucket. The surface of the water in the well was 50 feet below the surface of the ground. Each time he carried the bucket of water into the house and heated it on the stove and then carried it to the car "sort of in a running step to get there so the water couldn't get cold," and poured it into the radiator. In addition to this he cleaned the battery posts and the spark plugs. To be high enough to perform these tasks he placed a concrete block beside the truck's hood. On the last occasion when decedent ca7e to the house he told his wife he had to get the truck started because he had a job at which he had to be at 8:00 a.m.; that he would try once more and then would call the defendant to come help him.

The son of the decedent described how his father went to a neighbor's house to call the defendant; he went as fast as he could on snow and ice a distance of one and one-half to two blocks; he slipped several times. There was ice on the ground around the truck. The last time he went to the truck he placed one foot up and put it on the cement block when he slipped, swung around, went over and down. The claimant, Mrs. Miller, ran to where the decedent fell. He was flat on his face and she turned him over and she heard a noise coming out of his mouth and hurried away to get blankets. She later testified to some signs of life which she said she observed subsequent to ...


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