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COX v. UNIVERSAL TERMINAL & STEVEDORING COMPANY ET AL. (09/16/65)

decided: September 16, 1965.

COX
v.
UNIVERSAL TERMINAL & STEVEDORING COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1964, No. 4448, in case of Miriam Phyllis Cox v. Universal Terminal and Stevedoring Company et al.

COUNSEL

John M. Fitzpatrick, with him Joseph R. Thompson, for appellants.

Bert E. Zibelman, with him Freedman, Borowsky & Lorry, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Ervin, P. J.

Author: Ervin

[ 206 Pa. Super. Page 209]

The question raised by the appeal in this workmen's compensation case is whether claimant's decedent, Cox, was engaged in the furtherance of his employer's business and therefore within the course of his employment at the time he was shot and killed by a fellow employe.

The referee, the board and the court below made an award for the claimant.

There is no dispute as to the controlling facts as found by the board. Cox was foreman and had charge of hiring a stevedore gang employed by the defendant, Universal Terminal & Stevedoring Company. On the morning of April 26, 1962 Cox was ordered by defendant to hire a work gang of 22 men, including himself, to load drums of oil aboard a vessel in Paulsboro, New Jersey. The hiring was done at Pier 46, South Wharves, Philadelphia, at 8:00 o'clock a.m. to commence work at Paulsboro, New Jersey, at 1:00 o'clock p.m., and included James Beard, a personal friend of Cox. Defendant chartered a bus to transport the men from Pier 46, Philadelphia, to Paulsboro, New Jersey. Under contract regulations defendant furnished transportation and paid one-half hour traveling time for each trip from the point of origin to the place of work and return. The bus left Pier 46 about 12:15 p.m., carrying 18 of the 22 men and Cox. The remaining four longshoremen traveled to Paulsboro in the car of the assailant, James Beard. Work of unloading fifty gallon oil drums did not commence until 1:10 p.m. Although not part of his duty, Cox helped the rest of the gang since one member was missing. It was subsequently discovered that this man had been drinking and was asleep. A near accident caused tempers to flurry and Cox accused the sleeping gang member of drinking on the job. Beard defended the gang member and argued with Cox. Beard had been drinking an alcoholic beverage with several other gang members. Cox stated he

[ 206 Pa. Super. Page 210]

    would fire any gang member who came upon the job drunk, and ordered Beard off the ship. Beard then returned to Philadelphia alone in his car.

At 5:15 p.m. the rest of the gang finished their work in Paulsboro, New Jersey, boarded the bus, and returned to Pier 46, Philadelphia, where they were discharged from the bus. At this time the assailant Beard emerged from his car and aimed his rifle at Cox, who, with the other gang members, scurried for cover. After Beard was calmed by one of the gang members, Cox again stepped into the open and attempted to retrieve his shirt which he had dropped in flight. Beard, who was walking away, turned, saw Cox and, without raising his rifle, fired from the hip, hitting Cox. Decedent then ran across the street, slumped over a barrel and subsequently died. The shooting occurred about 5:45 p.m. Cox was paid until 6 p.m. under his contract with the company and he had the responsibility of dismissing the bus.

The evidence, viewed in a light most favorable to claimant, is sufficient to sustain the findings of fact of the board, which facts are not disputed. It is a question of law for the courts to decide whether, under these facts, deceased was in the course of his employment at the time he was killed: Goodman v. University Shop, Inc., 195 Pa. Superior Ct. 129, 134, 169 A.2d 316. Here the accident may be viewed as occurring off the "premises" of the employer, although it is apparent that the "working place" at any given instance of the decedent and the other longshoremen included the entire pier water front of the Delaware Valley. There is ...


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