Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anna Horvath, Widow of George Horvath, v. Chelden Radio Cab, Inc. and Westmoreland Casualty Company, Insurance Carrier, No. A-66260.
Earl T. Britt, with him Duane, Morris & Heckscher, for appellants.
David F. Kaliner, with him James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 10 Pa. Commw. Page 479]
The issue in this case is whether it was error as a matter of law for the Workmen's Compensation Appeal Board to affirm the finding of the referee that claimant-appellee's decedent was within the course of his employment at the time of his death. We find that it was not error.
Claimant-appellee's decedent was a cab driver for employer-appellant. His regular working hours were 5:00 p.m. to 2:30 a.m. However, it was not unusual for him to ask and receive permission to continue on duty until 6:00 a.m., which he had done on this night. At approximately 3:00 a.m., decedent stopped at a service station, visiting until 4:30-5:00 a.m. with two attendants on duty. Decedent then drove to a White Tower restaurant to obtain coffee and doughnuts for himself and the two attendants. Continuing, the hard facts are that he obtained three containers of coffee and doughnuts and was found between 5:30 and 6:00 a.m. behind the wheel of his cab with the lights on and the motor running, double parked, some blocks beyond the service station. The coffee and doughnuts were on
[ 10 Pa. Commw. Page 480]
the front seat beside him. He was shot to death. The fatal wound was under the right armpit. The radio hand microphone was torn from its fittings and was on the back seat. There was every indication that he was shot by his assailant who was in the back seat at the time, and that decedent had his arms raised. The flag on the meter was in the "up" or "off" position and there was no notation of fare entered on the way-bill.
It seems to this Court that those "hard facts" alone are sufficient to support the referee's finding, affirmed by the Board, that decedent was in the course of his employment at the time of his death. It does not require an excursion into the field of speculation to reconstruct the situation in which decedent, after obtaining his three take-out orders of coffee and doughnuts, secured a fare to the address where he was later found, and he was held up and killed by his fare. Indeed, there is hearsay evidence by a city detective who investigated the crime that a witness told him that he saw two individuals get into the decedent's cab after he obtained the coffee and doughnuts. Efforts were made to find this witness by both appellants and claimant-appellee, but he could not be located. This hearsay testimony is admissible. It can be considered, as it was here, along with the other testimony. Giordano v. Bianco, Inc., 204 Pa. Superior Ct. 219, 203 A.2d 396 (1964).
Much is made by appellant of the fact that no entry of a fare had been noted on the waybill, and that the fare flag was in the "up" or "off" position. This is evidence which could have been used if a contrary finding was being made. However, it is far from completely incompatible with the referee's finding. The flag may have been raised immediately when the cab stopped, and the facts would indicate that decedent never thereafter
[ 10 Pa. Commw. Page 481]
had an opportunity to make the entry on ...