87 Pa. Super. 440 | Pa. Super. Ct. | 1925
Argued October 27, 1925. The Commissioners of Northumberland County, having completed the re-construction of a county bridge across Moose Creek in Washington Township, said county, presented a petition to the Court of Quarter Sessions of said county to appoint suitable persons to inspect the bridge and the workmanship thereof as required by law, and make report to the said court. The court appointed George Lehman, the appellee, John Madara and M.J. Flynn, a surveyor, to view the said bridge, as prayed for. One of the viewers, Flynn, made an arrangement to meet the other viewers at Shamokin, from which place he was to take them in an automobile to the site of the bridge. The viewers were duly qualified to perform their duties by a justice of the peace, at Shamokin, and then started in the automobile upon their journey to the site of the bridge. They had proceeded some distance when the chauffeur lost control of the automobile, an accident occurred and the plaintiff was injured. The plaintiff *443 presented his petition to the Workmen's Compensation Board averring that at the time of the accident which caused his injuries he was employed by the Commissioners of Northumberland County, as a viewer to view a county bridge; that his injuries had prevented his working and praying that compensation be awarded. The referee after a hearing found that the appellee and the other parties named had been, on September 5, 1922, appointed by the Court of Quarter Sessions of Northumberland County as viewers to inspect the county bridge in question and make report according to law; that the viewers were notified of their appointment on September 29th; that they were directed to meet on the following day at Shamokin from whence they would be transported by automobile to said bridge; that the party was in charge of Flynn, "who by direction of the court and Commissioners of Northumberland County, arranged for their transportation to and from the construction to be viewed"; that the viewers did meet at Shamokin on September 30, 1922, where they boarded the automobile and proceeded about ten miles toward their destination, when the chauffeur lost control of the car and the several occupants were thrown from the car and all of them more or less injured; that at the time of the accident the viewers were acting within the scope of their employment; that the relation of employee and employer existed between them and the Commissioners of Northumberland County, and that the appellee was entitled to compensation, which was awarded. The Workmen's Compensation Board and the court below, respectively, dismissed appeals and affirmed the award of the referee, from which action we have this appeal by the Commissioners of Northumberland County.
The Workmen's Compensation Board and the court *444 below misconceived the nature of the proceeding in which this claimant was appointed as a viewer.
The commissioners of a county do not have a free hand in the matter of re-constructing county bridges which have for any reason become inadequate to serve the public needs. They must, before entering upon the work, first have the approval of the Court of Quarter Sessions and of the Grand Jury of the proper county, as we held in an opinion by our brother LINN, in re Wilkes-Barre Bridge, decided last July and not yet reported. It will hardly be contended that the judge of the Court of Quarter Sessions and the individual members of the Grand Jury are employees of the county, within the meaning of the Workmen's Compensation Acts of 1915 and 1919. When a bridge is completed either the contractor who has done the work or the County Commissioners may petition the Court of Quarter Sessions to appoint viewers to inspect the bridge and report to the court whether the bridge has been constructed in accordance with the specifications, or whether there are deficiencies therein and the amount which will be necessary to remedy the defects, but their report is subject to the approval of the court, and, even if the court approve the report, the contractor may file his declaration in the Common Pleas and is entitled to a jury trial. Whether the viewers have been appointed upon the petition of the County Commissioners or of the contractor, the proceeding is one at law, and to it the Commissioners are made the parties to represent the county. The whole proceeding is for the benefit of the public, is conducted in the Court of Quarter Sessions, and under its supervision, and the important function performed by the county is to pay the cost of construction under the report of the viewers when approved by the court. The effect of these provisions of the statute is to impose limitations on the power of the Commissioners, as well as *445
the citizens with whom they contract; Lehigh County v. Kleckner, 5 W. S. 181; Broomall's Appeal,
In the present case, the proposition, whether there is evidence to sustain the findings that the claimant was, or was not, doing certain things when injured, is one of law which may be reviewed to the extent only of deciding whether there is such evidence in the record; but, if the evidence appears, the findings thereon are of fact, and are not subject to review. Whether, on the state of facts found, he was an employee of the county and injured while in the course of his employment, is a question of law, and, as such, open to review; Callihan v. Montgomery,
The important point in this case, however, is, was this appellant, upon the facts found by the referee, an employee of the County of Northumberland? The Workmen's Compensation Act of 1915, P.L. 736, clearly indicates that it was the legislative intention that the relation of employer and employee, within the meaning of that statute, should arise only where there was contract, either express or implied, of hiring. This implies that the employer has the right to select, either at large or from a class, the employee, and that the employee shall have the right to accept or decline the employment. When a county or municipal corporation, acting through the proper officers, is authorized to select the person who shall perform certain duties, to define the nature of the duties and fix his compensation, as in the case of a borough policeman, the person thus selected is an employee of the county or the municipality, as the case may be, within the meaning of the Workmen's Compensation Acts; McCarl v. Houston Boro.,
The judgment of the court below and the award of the Compensation Board are reversed, and judgment is here entered for the defendant.