34 A.2d 812 | Pa. Super. Ct. | 1943
Argued October 26, 1943. Claimant in this workmen's compensation case sustained an accidental injury while employed as an equipment operator on a state highway. Compensation was refused by the referee whose findings of fact and conclusions of law were affirmed by the Workmen's Compensation Board. The court of common pleas dismissed claimant's appeal and sustained the board. Claimant has appealed to this court.
The reason assigned for the refusal of compensation was that claimant was working under the control and supervision of the Works Progress Administration at the time of the accident.
It is conceded that there is no controversy concerning the accident or as to claimant's loss; that the only question involved is whether claimant at the time was an employee of the Pennsylvania Department of Highways within the meaning of section 104 of the Workmen's Compensation Act of 1915, as reenacted and amended,
Claimant was employed by Cherry Township, Sullivan County, as an operator of its road roller. The Department of Highways entered into a contract with the supervisors of the township for the use of that equipment with an operator; it was to pay for the hours the equipment actually worked while in its possession. The department was to "have the exclusive possession and right to the use of said equipment when, where and as required. . . . . ." The department assigned the equipment and claimant as its operator to work on a state highway in Colley Township, Sullivan County. At that point the department was in exclusive control of claimant and the roller, and could have placed them on any road construction or maintenance work, the same as state owned equipment and state employees. The department could determine where and when he was to work, and direct how the work was to be performed. Thus the relationship of master and servant existed between claimant and the Department of Highways, which would be liable for compensation for accidental injuries sustained by claimant while so employed. Hoffman v. Montgomery County et al.,
But the question here is whether the relationship between claimant and the Department of Highways ceased when claimant began to work on the state highway to which he had been assigned by the department. This highway was being graded, and some of the work was being performed by W.P.A. labor. It was what is commonly called a W.P.A. Project. The Department of Highways furnished the materials, equipment, and *615 equipment operators; the W.P.A. supplied the common labor, and its supervision. The W.P.A. hired, discharged, supervised, and paid the laboring men working on the project, but it had no power to hire or discharge claimant or the equipment operators, and it had no control over the equipment except as to when and where it was to be operated on the project. Although not a decisive factor, the equipment operators were not paid by W.P.A. Their time, including that of claimant, was kept by employees of the department; and they were paid from state funds directly or to the equipment owner, as in the present case.
The W.P.A. was not a general contractor. The Department of Highways significantly states in its brief that the agreement between the department and the W.P.A. was not a contract for the construction of a highway, and that the W.P.A. was not in the business of contracting for the building of highways. See Act of July 18, 1917, P.L. 1083,
A master may loan his servant, with the latter's consent, to another under such circumstances as to create a new relation of master and servant (Tarr v. Hecla Coal Coke Co.,
Judgment is reversed, and the record is remitted to the court below, with direction to enter judgment according to the provisions of the Act of Assembly in *617 favor of claimant and against the Commonwealth of Pennsylvania, Department of Highways.