Appeal from order of Court of Common Pleas of Clearfield County, May T., 1966, No. 380, in case of Joseph A. Hansel v. S. R. Hansel et al.
John B. Gates, for appellant.
William U. Smith, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Watkins, J., dissents.
[ 210 Pa. Super. Page 121]
In this workmen's compensation case the only question is which of two insurance companies insuring different businesses of the same owner is liable for an award made in favor of the claimant.
[ 210 Pa. Super. Page 122]
The referee decided that both insurance companies were liable, each for half of the award. The board, after modifying two findings of fact and adding an additional one, held the appellant, Statesman Insurance Company, solely liable for the award. The Court of Common Pleas of Clearfield County affirmed the board.
Claimant, Joseph A. Hansel, was injured on April 14, 1965. He had been employed for a year by S. R. Hansel, who owned*fn1 and operated two businesses about two and one-half miles apart, one a coal stripping operation and the other a dairy farm. All employees, whether working in the coal operation or on the farm, were paid from an account designated S. R. Hansel Coal Company. Claimant until the day of the accident ran the coal tipple at the strip mine. On the day of the accident S. R. Hansel directed him to go to the farm and put a rear bearing on a manure spreader and it was while he was doing this that the injury occurred.
The board based the award against Statesman Insurance Company on the following finding of fact, "Tenth: By the insurance contracts with the employer all Workmen's Compensation Insurance for accidents on the employer's farm was carried by Statesman Insurance Company, and all Workmen's Compensation Insurance for accidents at the employer's strip mine was carried by Bituminous Casualty Company."
We have searched the record and we can find nothing to support the board's tenth finding of fact. There is no testimony in regard to the terms of the insurance policies issued by each company, nor have the policies been admitted into evidence. However, it is obvious
[ 210 Pa. Super. Page 123]
that the board in making this finding of fact relied on its construction of ...