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LEIGH v. JAMES J. CLEARKIN (04/12/62)

April 12, 1962

LEIGH, APPELLANT,
v.
JAMES J. CLEARKIN, INC. ET AL.



Appeal, No. 27, Oct. T., 1962, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1958, No. 3196, in case of Josephine L. Leigh, widow of Robert II. Leigh, v. James J. Clearkin, Inc. et al. Order affirmed.

COUNSEL

C. James Todaro, for appellant.

Joseph R. Thompson, for appellee.

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

Author: Montgomery

[ 197 Pa. Super. Page 565]

OPINION BY MONTGOMERY, J.

This is an appeal by the claimant-widow for workmen's compensation because of the dealth of her husband, who was killed in an automobile accident on January 10, 1957, at Reading, Pennsylvania. The only issue in the case is whether the decedent, at the time of the accident, was acting in the course of his employment. The matter has been before the Workmen's Compensation Referee twice, and each time he has disallowed compensation for the reason that the decedent, at the time of the unfortunate accident, was not acting within the scope of his employment; and each time the decision of the Referee has been affirmed by the Workmen's Compensation Board. This appeal is from the affirmance by the lower court of the Board's decision disallowing compensation.

[ 197 Pa. Super. Page 566]

Since the Workmen's Compensation Board is the ultimate arbiter of the facts and its findings are binding on appeal, if supported by competent and substantial evidence, our duty is to examine the record to determine if there is competent and substantial evidence to support its decision, or whether the Board has acted capriciously. Greap v. Oberdorff, 178 Pa. Superior Ct. 153, 113, A.2d 339; Messikomer v, Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A.2d 853. In determining this question we must view the evidence in the light most favorable to the appellees, since they have the benefit of the Board's decision. Moore v. MacArthur Pile Corporation, 193 Pa. Superior Ct. 512, 165 A.2d 275.

We have performed our duty and examined closely all of the testimony included in the record, and after having done so, conclude that the Board did not act capriciously and that there is competent and substantial evidence to support its order refusing compensation.

The testimony offered by the claimant is somewhat indirect and uncertain. It consists entirely of expressions by the decedent that he was going to Reading to adjust a claim relating to lumber purchased by his employer from the Northeastern Lumber Company, and that in adjusting the claim he was to see a Mr. Weikel. These expressions by the decedent were made at the home of his mother, where he had lunch before departing for Reading, and at the gasoline station of his brother-in-law in Reading after his arrival there. There is no doubt that decedent went to Reading because that is where the accident occurred. We note also that in going to Reading the decedent traveled in his own half-ton pickup truck; and that he had relatives in Reading with whom he visited and had dinner on the evening of the accident. It is also clear from the testimony of claimant's witnesses that the decedent did not, in fact, see Mr. Weikel on the day of his visit.

[ 197 Pa. Super. Page 567]

On the contrary, the testimony offered by the defendants was definite and substantial. It is not merely a direct denial as argued by appellant's counsel. Mr. Weikel, previously referred to, associated with the Northeastern Lumber Company, testified that although he had had dealings with the decedent concerning the lumber furnished to the job that he was supervising, there had been no such defects in the lumber which required adjustment. This witness further testified that he had received no phone call or visit from the decedent on January 10th, although he had been present in his office all that afternoon. Mr. James J. Clearkin, Sr., president of James J. Clearkin, Inc., one of the appellees, testified that the decedent had called him on January 10th sometime after lunch. He directed the decedent to return to the job and remain there to see if the architects would come to make out punch lists. These related to the final examination of the architect, preparatory to making a final payment. The job referred to was the St. Ambrose Convent job in Philadelphia, where decedent had been engaged. Mr. Clearkin denied emphatically that he had sent the decedent to Reading on any kind of business. Mr. James J. Clearkin, Jr., vice president of appellee-company, also testified that the decedent had reported to him on the morning of ...


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