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STINE v. BORST (12/16/64)

decided: December 16, 1964.

STINE
v.
BORST, APPELLANT



Appeal from order of Court of Common Pleas of Crawford County, Sept. T., 1963, No. 181, in case of Ruth Stine v. Raymond Borst et al.

COUNSEL

William W. Knox, with him M. Fletcher Gornall, Jr., and Magenau and Gornall, and Knox, Weber, Pearson and McLaughlin, and Bozic and Bozic, for appellant.

R. Charles Thomas, with him F. Joseph Thomas, for appellee.

Howard N. Plate, with him Quinn, Leemhuis, Plate and Busek, and Shafer, Shafer & Dornhaffer, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J.

Author: Ervin

[ 205 Pa. Super. Page 48]

Kenneth L. Stine, husband of the claimant in this Workmen's Compensation case, was killed on June 12, 1959 while driving a tractor-trailer unit owned by the defendant, Raymond Borst, and leased to the defendant, Pyramid Industries, Inc. (Pyramid), as a result of an accident which occurred near Monroeville, Ohio, when Stine ran off the road and struck a tree. No other vehicle was involved in the accident.

The sole question in this case is -- whose employe was Stine at the time of the accident? The referee found that Stine was the employe of Borst and absolved Pyramid from liability for compensation. The Workmen's

[ 205 Pa. Super. Page 49]

Compensation Board affirmed the findings of fact and conclusions of law of the referee. The court below affirmed the board. Borst has taken the present appeal.

The facts as found by the referee and affirmed by the board are as follows: "Raymond Borst, a defendant, was the owner of several tractors and trailers, and had entered into a leasing agreement with Pyramid Industries, Inc., the other defendant, to lease two semitrailers and three tractors to Pyramid. Pyramid was to pay for the equipment on a mileage basis. The lease also provided that the operation of the equipment was to be by carefully selected drivers, 'which drivers shall be conclusively presumed to be agents of the company only.' Further, it stipulated that the company was to be solely responsible for damage to the leased equipment resulting from gross negligence on its part or on the part of its agent.

"Kenneth Stine, the decedent, had been driving trucks for Raymond Borst for some years. He was also one of the drivers of the equipment leased to Pyramid Industries, and was carried on the payroll of that company. He had not been hired by that company, but was paid on a trip basis and his earnings were subjected to the usual deductions for income and other taxes.

"On June 8, 1959, Pyramid Industries called Borst and requested a unit to deliver a load to Boston. Stine was assigned to the job. He made delivery of the cargo to Boston, and then arranged to carry, for hire, a load of wool from Lawrence, Mass. to St. Mary's, Ohio. A lease agreement covering the shipment was signed, purporting to be between Pyramid Industries and Raymond Borst, as lessors, and Arnel Trading Co., as lessee. The lease was executed by ...


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