264 Pa. 372 | Pa. | 1919
Opinion by
The appeal is from the judgment of the Court of Common Pleas of Schuylkill County, sustaining an award of the compensation board in the matter of the claim of Mrs. Jacob Reitmyer, widow, against Coxe Brothers & Co., Inc.
In determining the amount of wages earned by the employee as the basis of compensation for the ascertainment of the amount of compensation to be awarded, the referee adopted the wage rate agreed upon by the parties but declined to make any deduction therefrom for or on account of supplies, tools and other things furnished and paid for by the employer, and which were necessary to the performance of the contract by the employee. The reason assigned by the referee for this conclusion was as follows: “The contract at hiring did not specifically provide that the value of material, supplies, tools and other things necessary for the performance of the employee’s contract should be deducted from the employee’s gross earnings, and the contract did not specifically provide that the employer was to furnish them and that the employee must procure them from the employer and no one else.” Appeal was taken to the compensation board with the result, that without further findings, the award of the referee was sustained and appeal dismissed.
The error complained of in the present appeal from the judgment of the court below is the affirmance by the learned court of the award and decree of the compensation board on the ground set forth in the opinion filed, which reads as follows: “It is contended in this case that these amounts should be deducted in computing the term ‘wages.’ In the opinion filed by the commission in the first paragraph appears the following ‘The first question is one of contract. It was not reduced to writing,
There is no pretense that an express contract of hiring existed between the parties. Whether from the facts and circumstances shown an implied hiring contract could be derived was a question of law and should have been passed upon by the court. It was error to decline to do so, and for this reason the judgment calls for a reversal. We accordingly so order and remand the record to the court below to pass upon the question we have indicated, should the ascertained facts be found sufficient therefor; if not, to further remand the record to the compensation board with instructions to find further. We suggest, as matter of law to be observed in any event, that the period of compensation under the Workmen’s Compensation Act of 2d June, 1915, in cases of instantaneous death of the employee does not begin until fourteen days after death. So much Eas been decided in Rakie v. Jefferson, etc., Coal & Iron Co., 262 Pa. 444.
Judgment reversed.