156 A. 725 | Pa. Super. Ct. | 1931
Argued April 23, 1931. This is an action of trespass for the wrongful death of plaintiffs' son, William De Nardo. After a verdict for plaintiffs defendant's motion for judgment non obstante veredicto was refused and judgment was entered on the verdict. Defendant appeals and the single assignment of error is to the refusal of this motion.
Seven Baker Brothers, defendant corporation, was engaged in the manufacture of bread, pies, cakes and other similar products, and maintained and operated its principal place of business in the City of Pittsburgh. It laid out into fifty-one routes the territory into which it delivered its products, and maintained a fleet of automobile trucks which it used in making deliveries. At the time of the occurrence of the accident out of which this action arose defendant employed in its sales department one Hendzel, who made deliveries of bakery products on one of the routes by means of one of defendant's trucks, which it furnished to him, and for which it supplied the gas and oil. It placed in Hendzel's hands a route book containing the names of the customers to whom deliveries were to be made. It authorized him to solicit other customers along the route and to sell to them at prices fixed by it. It maintained a schedule under which its routes were operated. According to this schedule Hendzel went to defendant's premises each morning, loaded the truck and left the plant about 4 or 4:30 o'clock. He was paid a commission of seven and a half per cent. of the gross sales, and could be discharged by defendant at any time. He was authorized by defendant to employ a helper at his own expense. For two or *350 three months prior to the date of the accident, he employed William De Nardo, a boy of sixteen years, as a helper, and paid him $1.50 a day. The boy went into defendant's plant every morning, with the knowledge of defendant, assisted Hendzel in loading the truck, accompanied him on the route and helped him to deliver the load. While riding on the truck on June 16, 1928, the boy was killed in an accident resulting, as it appears from the verdict of the jury, from defendant's neglect of duty in furnishing to Hendzel a truck on which the brakes were defective and out of repair.
Appellant seeks to escape common law liability on the ground that the boy was its employe at the time he met his death and that, therefore, it is within the sheltering protection of the Workmen's Compensation Act. It contends that Sections 203 and 302 (b) of the act control the disposition of the case. Section 203 provides: "An employer who permits the entry, upon premises occupied by him or under his control, of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to that employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe." Section 302 (b) merely carries into effect Section 203, by providing that the employer who does the acts described in Section 203, "shall be conclusively presumed to have agreed to pay such laborer or assistant compensation, c." While these sections of the act have been applied, in adjudicated cases, to workmen hired by sub-contractors (McDonald v. Levinson Steel Co.,
The judgment is reversed and is here entered for defendant. *353