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MAHER v. HALLMARK CARDS (04/14/66)

decided: April 14, 1966.

MAHER
v.
HALLMARK CARDS, INC. ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1965, No. 675, in case of Diane E. Maher, widow of James Maher, deceased, v. Hallmark Cards, Inc. et al.

COUNSEL

Richard D. Harburg, with him Swartz, Campbell & Detweiler, for appellants.

Charles F. Quinn, with him Sheer & Mazzocone, for appellee.

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

Author: Wright

[ 207 Pa. Super. Page 474]

This is a workmen's compensation case. The employer and its insurance carrier have appealed from a judgment entered by Court of Common Pleas No. 7 of Philadelphia County following the affirmance of an award made by the compensation authorities. The factual situation is summarized in the following excerpt from the opinion of the Board:

"James Maher was employed by the defendant as a salesman, his territory for sales being North Philadelphia. On Friday, August 17, 1962, at the request of a fellow employe, James Boyd, the decedent traveled to the Charles News Agency in Downingtown, Pennsylvania, where the decedent and Boyd assisted two other salesmen in setting up a greeting card display. The installation began in the morning and continued until about 7:00 P.M. that evening. At about 7:45 P.M. the installation was completed and the decedent, with two of the other three salesmen, went to the Swan Hotel across the street where the decedent drank four to six bottles of beer while engaged in conversation with the other two salesmen about their business affairs. About midnight the decedent left the Hotel and separated from the others at the parking lot. Approximately one hour later the decedent was killed when his automobile crossed into the opposite lane of traffic and struck an oncoming tractor-trailer. The accident occurred within Downingtown; the decedent's auto was headed in the direction of Philadelphia".

The Referee made, inter alia, the following finding of fact: "5. That at the time of the accident the claimant's decedent was returning from a job performed by him for the defendant in an automobile furnished by the defendant". The Referee concluded as a matter of law "that, since claimant's decedent sustained an accident while in the course of his employment with the defendant as a result of which he died, his dependent

[ 207 Pa. Super. Page 475]

    widow and two minor children are entitled to compensation". The Board similarly found that, at the time of the accident, claimant's decedent was in the course of his employment. As previously indicated, the decision of the Board was affirmed by the court below, and this appeal followed.

Appellants here advance the same two contentions which were unsuccessfully asserted before the compensation authorities and in the court below, namely: "1. Decedent was not in the course of his employment while he was simply voluntarily assisting a co-employe with the physical labor of installing a card display, outside of his own sales territory, and without any order or direction by his employer to do so. 2. Decedent was not in the course of his employment following a deviation of over six hours during which time he performed no employment activity whatsoever, either directed or ordered by his employer, and was at a place where his presence was not required by the nature of his regular employment".

In our consideration of this appeal it is important to bear in mind that decedent's employment was primarily off-premises. He was a sales representative whose office was in his home, where he had a desk, a file, and use of a typewriter. The car he operated was registered in the State of Missouri under the employer's ownership. A fellow sales representative, John McDermott, testified that he and decedent, with James Boyd and Don Barney, had an assignment in Downingtown to install a greeting card department at the Charles News Agency. This was "what we call a complete installation in that it was the old fixtures were removed from the store, remodeled completely . . . and our job was to install the new place, ...


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