LOBOS v. UNION PAVING CO., 298 Pa. 381 (1930)

148 A. 500

Lobos v. Union Paving Co., Appellant.

Supreme Court of Pennsylvania.November 25, 1929.
January 6, 1930.

Workmen’s compensation — Course of employment — Breaking continuity — Lending workman.

1. In a workmen’s compensation case, compensation will be awarded for the death of a workman killed while a steam shovel was in course of transportation, where the evidence shows that the deceased was a general employee of the owners of the shovel, that defendant agreed with such owners to pay a stated amount and all expenses for hire of the shovel, including the operator, who was the deceased, from the day the machine left the owner’s plant until it was returned, that the agent of defendant gave orders that the deceased was “to get the shovel ready to be transported” and that he was to leave with the shovel, that the deceased carried out these orders, prepared the shovel, helped to load it, and, on the invitation of defendant’s agent, took a place on the truck engaged by defendants for the transportation, to the place where it was to be used, and that the deceased was killed en route.

2. In such case it cannot be held that the continuity of the special employment of deceased by defendant was broken, by riding in the truck-train carrying the shovel, inasmuch as this was the proper and natural place for deceased to be.

3. Nor can it be held that the employment of the deceased by defendant must be limited to the running of the shovel after it was put in operation or when actual digging began.

4. Nor can it be claimed that defendant was not liable on the ground that it had not agreed to transport deceased, inasmuch as such argument overlooks the order of defendant’s agent that deceased was to accompany the shovel, and also because it overlooks the fact that the transportation of decedent was from one scene of the employer’s affairs to another, and not from the worker’s home to the employer’s place of business or vice versa.

Argued November 25, 1929.

Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

Appeal, No. 278, Jan. T., 1929, by defendant, from judgment of C. P. Carbon Co., Jan. T., 1929, No. 60, affirming decision of workmen’s compensation board allowing claim, in case of Helene Lobos v. Union Paving Company. Affirmed.

Page 382

Appeal from decision of workmen’s compensation board awarding compensation for death of workman. Before THOMAS, P. J.

The opinion of the Supreme Court states the facts.

Decision sustained. Defendant appealed.

Error assigned, inter alia, was judgment, quoting record.

Hubert J. Horan, Jr., with him T. F. Deady, for appellant.

Roger J. Dever, for appellee.

PER CURIAM, January 6, 1930:

This is an appeal from a judgment on a workmen’s compensation award to Helene Lobos, widow of Charles Lobos. Lobos was killed when a steam shovel, owned by Naimo Krasniski, who regularly employed him to operate it, “fell off a trailer,” on which the shovel was being transported to a place where the Union Paving Company, defendant, was doing work in connection with which, under an arrangement with the owners of the shovel, that implement and its operator were to be used.

The single question before us is whether the record contains evidence “legally sufficient” to sustain the finding that Lobos was killed in the course of his employment with defendant company.

A verbal contract for the use of the steam shovel and employment of its operator was made by a representative of defendant company with Naimo Krasniski, the owners of the shovel and regular employers of Lobos, and there is ample evidence on the record to show that the latter’s special employment by defendant, as well as his pay, began before the departure of the shovel from the premises of Naimo Krasniski at Kulpmont, Pa. The evidence shows that defendant agreed with the owners of the shovel to pay “$400.00 a month and __________ all

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expenses, including the operator and expenses of the shovel from the day it [left] Kulpmont until it is returned to Kulpmont”; that Summer, the representative of defendant, gave orders that Lobos was “to get the shovel ready to be transported” and that he was “to leave with the shovel the next day”; further, that the deceased carried out these orders, prepared the shovel, helped to load it, and, on the invitation of one of the drivers, took a place on a truck engaged by defendant to make the journey to Lansford, where he and the shovel were to be used by defendant; finally, that he was killed en route.

Lobos’s employment by defendant company started in Kulpmont and included his traveling from that place to Lansford; and, since there is evidence on the record to show that he was making this trip for the sole purpose of running the shovel, it cannot be held that the continuity of the employment was broken by riding in the truck-train carrying the shovel, a natural and proper place for him to be. An analogous situation, but where the intention of the employee to serve his employer’s purposes was less apparent than here, arose in Rodman v. Smedley, 276 Pa. 296, and was held compensable.

No question is raised as to Lobos being a temporary employee of defendant in connection with its hire of the steam shovel, and, on the evidence in this case, we cannot sustain appellant’s contention that the employment of the deceased by defendant must be limited to the running of the shovel after it was put into operation, or when the actual digging began. Appellant’s further argument that it had not agreed to transport Lobos from Kulpmont to Lansford and therefore could not be held liable, under our decisions, for injuries happening en route, overlooks the order of the representative that Lobos was to accompany the shovel, and also the important consideration, evident in the cases relied on, that they deal with transportation from the worker’s home to the employer’s place of business or vice versa, not, as

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here, from one scene of the employer’s affairs to another: see, for instance, Dunn v. Trego, 279 Pa. 518, and cases there discussed; Logan v. Pot Ridge Coal Co., 79 Pa. Super. 421.

The judgment is affirmed.