20 A.2d 916 | Pa. Super. Ct. | 1941
Argued April 22, 1941. On June 4, 1938, J.B. Coccaro, claimant's husband, was killed in an accident when the coal tipple, on which he was pushing loaded cars, collapsed. The board on the appeal of the insurance carrier affirmed the award of the referee on the finding that he then "was an employee of a cooperative unincorporated association known as Herman Coal Company" and that the carrier was liable. The lower court, on appeal, concluding that the testimony established that decedent was an employer and not an employee, reversed and entered judgment for defendants.
There are facts which are not in dispute. In 1937 Coccaro had entered into a written lease agreement with the owner of the mine giving him the right to mine coal for a consideration based upon tonnage and payable as the coal was produced. For several months he operated the mine with a partner, on an arrangement with which we are not concerned. On the termination of that relationship he entered into another partnership agreement in writing on March 21, 1938, with Ralph Palmer and Leonard Macefe. These three interested fourteen other miners who were then out of work and each of them, to qualify for employment under the terms imposed, deposited $25 in a fund to be used as an advance payment for electric power and for workmen's compensation insurance. It was agreed that from the sale of coal each should be paid wages, Coccaro, Palmer, and Macefe at agreed per diem rates; the others on a tonnage basis according to the coal produced. During the one month of operation preceding Coccaro's death, wages were paid to each on that basis. Coccaro was treasurer of the venture and all disbursements were made by checks signed by him, up to the time of his death. The business address of Herman Coal Company was the residence of Coccaro and all of the records of *84 the mining operation were kept there by his son. J.B. Coccaro in his own name, alone, as the employer trading as Herman CoalCompany secured a compensation policy from defendant insurance carrier. Herman Coal Company was not registered as a business conducted under a fictitious name.
From additional oral testimony the compensation authorities found that the partnership agreement with Palmer and Macefe had been abandoned before operations were begun and that the defendant Herman Coal Company, which actually worked the mine, was an unincorporated cooperative association formed for the purpose by the entire group, including Coccaro, on an even footing. There is evidence that in operating the mine they had no "boss" though to comply with the law they designated Coccaro mine foreman because he alone was certified under the Act of April 7, 1925, P.L. 174, 52 P. S. § 852. This evidence was to the effect that all had equal rights, with no power to hire or discharge a member except as a group. Coccaro was found to be an employee of the association.
It is no objection to the award that it is based upon a liberal construction of the testimony in the face of serious disputes, and since the basic facts, as found, are sufficiently supported by competent evidence they may not be disturbed on appeal. Herman Coal Company did not appeal from the award of the referee. The record shows an appeal by defendant insurance carrier alone. Therefore the subsequent appeals of Herman Coal Company to the common pleas and to this court were nullities. Wise v. CambridgeSprings Boro.,
The issue between claimant and defendant insurance carrier, properly before us on this appeal, in our view, *85 is governed by a construction of the indemnity contract entered into by Coccaro, and not by his actual status in the operation of the mine.
The lower court, in reversing the board, considered Coccaro's written application for compensation insurance as a part of the evidence. This we may not do for a copy of the signed application was not attached to the policy. Act of May 17, 1921, P.L. 682,
The policy in this case complied with the statute (Act of May 17, 1921, P.L. 682, § 651,
We cannot alter the unequivocal language of the policy and thereby enlarge its scope. Topkis v. Rosenzweig,
The judgment in favor of defendant insurance carrier *87 is affirmed; the appeals of Herman Coal Company, a cooperative association, to the lower court and to this court are quashed.