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DEWS v. SHMUKLER ET AL. (11/15/62)

November 15, 1962

DEWS
v.
SHMUKLER ET AL., APPELLANT.



Appeal, No. 157, Oct. T., 1962, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1961, No. 891, in case of Grady Dews, Jr., a minor, by Grady Dews, Sr., claimant, guardian, v. Jack and Nathan Shmukler. Judgment affirmed.

COUNSEL

William J. Toy, for appellant.

Harry J. Dranoff, with him Frank H. Lewis, for appellee.

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

Author: Montgomery

[ 199 Pa. Super. Page 418]

OPINION BY MONTGOMERY, J.

This is an appeal by Nathan Shmukler, one of two defendants, in a claim for compensation for injuries sustained by Grady Dews, Jr., a minor, under the provisions of the Pennsylvania Workmen's Compensation Act.

The facts, which are for the most part undisputed, disclose that the claimant, fourteen years of age, had been employed by Jack Shmukler on many occasions

[ 199 Pa. Super. Page 419]

    to assist him in his business of huckstering eggs. On August 16, 1957, claimant reported to Jack Shmukler for employment and was told by him that his nephew, Nathan Shmukler, had borrowed one of his trucks for the purpose of huckstering cantaloupes that day and might be willing to give employment to the claimant. The claimant spoke to Nathan Shmukler, who agreed to use his services. The claimant accompanied Nathan Shmukler in the borrowed truck, and while helping to load the crates of cantaloupes struck the second finger of his right hand on a weighing device, injuring it so severely that it became necessary to amputate the first digital segment of this finger.

The claimant, by his guardian, filed a claim for compensation against Jack Shmukler and Nathan Shmukler as co-defendants, alleging he was in the employ of both at the time of the accident. After a hearing, the referee found that the claimant was an employee of Jack Shmukler and charged said defendant for Workmen's Compensation as provided under the act and also found that the claimant was not an employee of Nathan Shmukler, the other defendant, who was discharged. An appeal was filed by Jack Shmukler to the Workmen's Compensation Board. There was no appeal filed by Nathan Shmukler or no appeal filed by the claimant. The board reversed the referee and held that the claimant was the employee of Nathan Shmukler and not the employee of Jack Shmukler. Nathan Shmukler, the appellant herein, filed exceptions to the opinion of the board. The court below sustained the opinion of the board and this appeal was perfected.

There is no dispute that the claimant was illegally employed in that he was only fourteen years of age and had no working papers, and that if he be entitled to compensation, he is entitled to compensation for the period of twenty-one weeks at $22.50 a ...


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