Cardiota v. Cunningham Piano Co., 87 Pa. Super. 458

87 Pa. Super. 458 | Pa. Super. Ct. | 1925

Argued December 15, 1925. The Cunningham Piano Co. is engaged in the business of selling pianos, and repairing and tuning such instruments, as an incident of the business. Anthony Cardiota, the deceased husband of the plaintiff, had been employed by the piano company, as a tuner, repairman and salesman for many years when, on July 18, 1923, he was killed by the up-setting of his automobile on a highway in Bucks County. The store of the piano company is located at 1101 Chestnut St., Philadelphia. The widow, this plaintiff, presented a petition to the Workmen's Compensation Board, averring that the deceased had been killed as the result of an accident in the course of his employment. She was awarded compensation by the referee, which was affirmed by the Compensation Board and the court below; hence, this appeal by the defendants.

The appellants contend that, as the accident did not occur on the premises of the employer, there was no competent evidence to sustain the finding of the referee that the injuries resulting in the death of the husband of plaintiff occurred in the course of his employment; that the employee was not, at the time he was killed, engaged in the furtherance of the business and affairs of the employer. The evidence as to the character of the duties of this deceased employee was uncontradicted and clearly disclosed that those duties were not to be performed upon the premises of the employer. The tuning and repairing of pianos was done at the homes of the customers, but this work was only a part of the duties of the deceased. He was also a salesman. He some times received suggestions, or as the witnesses said "prospects" from the prospect department which it was his duty to go out and investigate and endeavor to make a sale, but in addition to this he was engaged and expected to hunt up prospects, wherever they could be found, and endeavor to make sales. This branch of the business was more profitable both to the employer and the employee, and was to be given preference over tuning and repairing work. One of the witnesses who had charge of the management of the piano company's business thus testified upon that point: "very often they get an order for tuning and they get a prospect for a sale and they will bring in the prospect and leave the tuning orders go. In other words, they make more selling a piano, they will drop every order of tuning, in order to sell a piano." "Q. Their real employment to you is in the missionary field to bring in prospects to sell a piano? A. Yes. Q. If they have a hunch they can find a prospect any place they will try to find them? A. Yes. Q. And you encourage them? A. Yes." On the morning of the accident the deceased had been given several orders for tuning pianos in the city of Philadelphia, at about eight-thirty o'clock in the morning; and two hours later he was found in a dying condition under his automobile upon a highway in Bucks County. L.P. Horn, the witness whose testimony is above quoted, who was very familiar with the manner in which the piano company did business, testified that so far as the general run of the business of the company was concerned the deceased was in the employ of the piano company upon the day he was killed, that he had been given several orders that day for tuning pianos, but that those orders did not confine him to any particular territory, that the company encouraged him to go anywhere if he thought he could make a sale, and that in the course of his employment it was his duty to hunt up such prospects. This witness testified that the salesmen were expected to use automobiles and that the automobile had obliterated county lines; that when a man received orders for tuning pianos in south Philadelphia that did not confine him for that day to that particular territory; that he was expected to go anywhere that he might have a prospect of making a sale. "Q. The fact that you gave him work to do happened to be in south Philadelphia, from your experience and from your encouragement, there is nothing significant that he was in Bucks County that morning? A. Not if he had a prospect there." It thus appears that the deceased had a roving commission, which required him to be absent from the premises of the employer and to go wherever he believed he had prospect of making a sale, and that he was expected to disregard orders for tuning pianos in order to pick up prospects for sales. One question and the answer thereto by this witness is especially applicable to the facts in this case, viz: "Q. It isn't unusual for a man to tune a piano in south Philadelphia and find a person had some relative living in Bucks County that the salesman might jump out there and look up the prospect? A. That is usual". When Cardiota was found, in a dying condition, under his automobile in Bucks County, he had with him his tools for tuning pianos and parts to be used in the repair of such instruments. Mr. Horn testified that the deceased had worked under his supervision for five and a half years; that he had always found him to be a good workman and never had anything against his character, and that he had applied himself to the sale and tuning of pianos in accordance with his employment contract. There was introduced before the referee some hearsay evidence which might indicate that the deceased had departed from the course of his employment, but that evidence was so clearly incompetent that it can have no weight in the determination of this case.

The nature of the duties which the deceased was encouraged and expected to perform required him to be active and drive from place to place. The place where he was killed was one to which his duty required him to go if he believed that he might effect a sale in that locality. There was no competent evidence which would have warranted a finding that he went there for any other purpose. He carried with him the tools of his trade. He was killed before he had an opportunity to report to his employer whether he had discovered a prospect for a sale. Although the Act of June 26, 1919, P.L. 642, brings the evidence before us for review in this class of cases, we are without jurisdiction to weigh conflicting evidence and the inferences therefrom arising; our revisory powers are limited to the determination of the question whether there is evidence to support the findings, and whether the law has been properly applied to them; Yodis v. Phila. Reading C. I. Co., 269 Pa. 586; Zelazny v. Seneca Coal Mining Co., 275 Pa. 397; Rodman v. Smedley, 276 Pa. 296. The fact whether the deceased was acting in the course of his employment at the time of the accident, like any other fact, may be found from circumstances; here a man who for years had faithfully discharged the duties of his employment, was found in a dying condition, as the result of an accident, which occurred at a place where the terms of his employment might require him to go, and had with him the tools of his trade. We have reached the conclusion that there was sufficient evidence to sustain the finding of the referee. The assignments of error are dismissed.

The judgment is affirmed.