be competent evidence on the issue of master-servant relationship. We would, however, go further and hold it to be prima facie evidence of the master-servant relationship.
The following provisions from the Pennsylvania Workmen's Compensation Act are relevant.
' § 731. * * * On or after the seventh day after any accident shall have occurred, the employer and employe or his dependents may agree upon the compensation payable to the employe or his dependents under this act; * * *
'All agreements made in accordance with the provisions of this section shall be in writing, and signed by all parties in interest.
'All agreements for compensation and all supplemental agreements for the modification, suspension, reinstatement, or termination thereof, and all receipts executed by any injured employe of whatever age, or by any dependent to whom compensation is payable under section three hundred and seven, and who has attained the age of sixteen years, shall be valid and binding unless modified or set aside as hereinafter provided.' 77 P.S. § 731.
' § 771. * * * The board, or a referee designated by the board, may, at any time, review and modify or set aside an original or supplemental agreement, upon petition filed by either party with the board or in the course of the proceedings under any petition pending before such board or referee, if it be proved that such agreement was in any material respect incorrect.' 77 P.S. 771.
We wish to emphasize the phrase 'all agreements -- shall be binding unless modified or set aside as hereinafter provided'. Compensation agreements have been held to be prima facie evidence of a compensable accident, imposing the burden of proof upon the one who seeks to change the status evidenced by the agreement. Rehm v. Union Collieries Company, 152 Pa.Super. 461, 33 A.2d 637 (1943); Williams v. Baptist Church, 123 Pa.Super. 136, 188 A. 168 (1936). This approach would seem to warrant treatment of a Compensation Agreement and the facts alleged therein as prima facie evidence of those facts until disproved by the moving party.
Does section 771 provide the exclusive remedy for challenging a Compensation Agreement? We think not. Section 771 seems to authorize an exclusive procedure where the issue is one of decrease in disability, error in original amount of compensation, etc. Morrow v. United Iron & Metal Co., 72 Pittsb.Leg.J. 80 (1924). However, where there was no basis for entering into the agreement initially and the ultimate determination of the parties' rights must depend on an adjudication by a court of law, the same considerations do not apply. It seems impractical to compel two proceedings to decide one issue. Where the attack against the agreement is jurisdictional, as it is in the case before us, the matter may be raised collaterally. However, the fact that plaintiff is permitted in a federal court to question the jurisdiction of the Workmen's Compensation Board to approve the agreement in no way minimizes his burden to prove that jurisdiction was lacking.
In so far as negligence is concerned, the case was submitted to the jury for its consideration on the theory that Cook negligently instructed Verbit what to do if the boom stuck, i.e. to 'pull on the boom' (N.T. 523-524) and this pulling caused the boom to collapse.
We have searched the record carefully for evidence to support a finding that Cook's instruction was improper, unusual or created an unreasonable risk of harm to the crew operating the derrick, or that acting in compliance with that instruction was the cause of the boom's collapse. All that we have been able to find is plaintiff's counsel's argument to the jury demonstrating the danger of a seventy-five foot boom with an eighteen foot mast. We found neither expert nor lay testimony in the record to throw any light on whether it was dangerous or negligent to pull on such a boom attached to such a mast. What the record does support is an inference that defendant may have knowingly furnished a defective piece of equipment. In his brief in opposition to defendant's post trial motions, plaintiff argues that defendant did knowingly furnish a defective piece of equipment. That issue should be resolved by a jury under proper instructions and not left in the realm of speculation.
For the foregoing reasons, defendant's motion for new trial will be granted. Its motions for judgment n.o.v. and judgment on the whole record will be denied.
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