27 A.2d 445 | Pa. Super. Ct. | 1942
Argued May 5, 1942. This appeal is from the order of the court below sustaining the workmen's compensation board in making *446 an award in favor of two minor children of Monroe Ellsworth Ormes, deceased.
Ormes, a janitor of a small apartment house in Pittsburgh, was burned to death in his apartment situated above the garage 60 feet in the rear of the main apartment building where he performed his work. A claim for compensation on behalf of a minor daughter Gretta Angelica Ormes, who lives with her paternal grandmother, was filed July 5, 1938, by the Peoples-Pittsburgh Trust Company, guardian. On October 28, 1939, more than two years after deceased's death, the Trust Company amended its petition naming another child, Gwendolyn Marlyn Ormes, who lives with her mother the divorced wife of the deceased, as an additional dependent child entitled to compensation. The referee disallowed compensation, finding that the deceased was not in the course of his employment when he met his death and ruled also that the amended petition was barred by the limitation specified in section 315 of the Act of June 2, 1915, P.L. 736,
There is little dispute over the essential facts. The deceased's duties were those usually discharged by a anitor of a small apartment house and included the care of the grounds. Ordinarily during the summer months and early fall when a fire in the furnace was not required his hours were from 7:00 A.M. until dinner time in the evening. There were rare occasions that he was called upon to perform some slight service outside *447 of those hours. On the night in question the furnace was not in operation and the deceased between 7:00 P.M. and 7:00 A.M. was free to leave the premises. He was paid wages of $50 per month by his employer, the Fidelity Trust Company, a mortgagee in possession under agreement with the owner, less $10 rent for his living quarters comprising a living room, kitchen, bedroom and bath.
During the evening of September 10, 1937, Ormes entertained two men friends and three women in his apartment. Whiskey, wine and beer were served to all the members of this group. About 12:45 A.M. he took three of his guests on an automobile ride returning to the apartment at 1:30 A.M. The party broke up about 2:15 A.M. and the last time Ormes was seen alive was when he came out and assisted his friends in pushing their car to get it started. The firemen who had been called reached the apartment around 4:00 A.M. and discovered Ormes' body almost fully dressed lying partly under the couch in the living room. They found several empty bottles and a half-gallon glass container with some wine in it.
Whether deceased met death in the course of his employment is a question of law for the courts: Lewis v. Capital Bakers, Inc.et al.,
It is unnecessary to pass upon the question of whether the claim on behalf of Gwendolyn Ormes was filed in time. We might state, however, that in Sweeney v. Reading Co.,
Judgment and order of the court below are reversed with directions to enter judgment in favor of the defendant. *449