43 Pa. Super. 466 | Pa. Super. Ct. | 1910
Opinion by
The defendant is a corporation which in the winter of 1906-1907 took a contract for the grading and preparation of the right of way of a railroad company through portions of Venango county. The plaintiff' began this action to recover wages for labor doné by him on a part of this line in the month of March, 1907. It appears that along the line two camps had been constructed where the workmen temporarily lived. One was known as Brandon’s ferry, the other as Victory run.. The labor, for the wages of which the plaintiff sues, was done on the portion of the line known as the Victory run job. The defendant, not denying that the plaintiff did the work, and consequently earned the money for which he sues, defends on the ground that this work was not done for it. It alleges that although it had a general contract for the entire construction through the county, it had sublet that portion of the work called the Victory run job to an independent contractor, referred to in the testimony as the Auman Construction Company, and that it was in nowise responsible for the wages of those who performed labor on that job. This defense naturally put the parties at issue as to certain important questions of fact.
The plaintiff’s theory, which he supported by evidence,
During the course of the trial a paper was offered and admitted in -evidence marked exhibit “A.” This was first a letter from the manager of an employment office in the city of Pittsburg, whose name was Schepis, whose business it was to furnish workmen for. contractors doing railroad work. On November 24, 1906, he addressed a letter to The Miller Construction Company advising it that he was now in a position to furnish any number of laborers the company might need on its work. This letter was received at the office of The Miller Construction Company and the following reply, written on the same sheet, was mailed to the employment office: “Dear Sir: How soon can you put 60 men at Brandon, Pa. for all winter’s work? Answer at once to Franklin, Pa. C. E. Lovejoy.” Lovejoy was the secretary of The Miller Construction Company.
The manifest purpose of the offer of this letter was to show that when the plaintiff and his fellows were originally taken from Pittsburg to Venango county, they went into the service of the defendant and thus that the relation of master and servant, employer and employee was estab
The transfer of the men from Brandon’s ferry to Victory run was accomplished under these circumstances. One McMurdy was the person in active charge of the work at Victory run. He needed more men. He went to the office of the defendant company at Franklin, made known his wants and received an order from Miller, the vice president, signed by Lovejoy, directing the transfer of the required number of men to Victory run. The witness,
We have gone over the record with much cafe but we are unable to find in it any warrant for this conclusion on the part of the learned trial judge. The order itself, as we understand it, was not produced in evidence. The testimony as to its purport and purpose seems to be clear enough and this testimony, as we read it, might easily have led the jury to an entirely different conclusion. As the writing itself was not in evidence and the character of its contents was proven only by oral testimony, it was the function of the jury, under proper instructions, to determine what were the character and object of the order. The fifth assignment is sustained.
• When the wages earned in the month of March by the plaintiff and his colaborers were not paid, their claims were left with Esquire Btjnce, a justice of the peace, for
The witness goes into considerable detail to explain that the defendant company wanted to so arrange the matter, if possible, that they could get from Auman, whom they now claim to have been a subcontractor, certain moneys due them from him, or property of his in lieu thereof. But in no way was his testimony that we have quoted shaken, yet the learned trial court, in treating of this evidence which was most material to the plaintiff’s case, used the following language, fourth assignment: "Squire Bunce testifies to a conversation had at the office of The Miller Construction Company after the work was performed, in which he states at first that it was admitted that the amount was due by The Miller Construction Company to this man, but before he left the stand he stated that Mr. Miller and those in the office requested him to proceed and secure judgment against Mr. Auman, or the Auman Construction Company, and then attach the money in their hands. This conversation, if it took place as they allege, would indicate that the amount was
The tenth and eleventh assignments complain of the charge as a whole in that the learned judge failed to clearly and adequately define the issue between the parties and to accurately and judicially present for the jury’s consideration the law applicable to the case. A careful reading of the entire charge impresses us with the idea that the learned trial judge was strongly of the opinion that the weight of the testimony was so clearly against the plaintiff that there was but little left for the jury to consider. Now the plaintiff’s theory was supported by evidence that tended to show the following facts: The defendant, as we have said, had contracted for the necessary work along the entire right of way. Being in need of laborers, it had arranged, through an employment office in Pittsburg, to have a number of Italian workmen gathered together and hired, as the reply to the letter quoted indicated, "for all winter’s work.” These men, the plaintiff among them, were thus assembled, taken to Venango county and placed on the job at Brandon’s ferry. There does not seem to be now any question that while there they were working for and paid by the defendant company. By the order of their employer, some of the men, the plaintiff again among them, were transferred from Brandon to Victory. The men were not notified of any change in their employment. They were not advised, nor
The evidence does not show the existence of any partnership or corporation known as The Auman Construction Company. It does show that an individual named Auman appeared once or twice on the Victory run job, and Mc-Murdy states he was working for him or for a construction company under whose name he operated. It also shows that the defendant company owned much of the machinery, if not all of it, used in that portion of the work; that it supplied the cement and other matters of like significance, not necessary here to be detailed, but all tending strongly to show not only that the plaintiff believed he was, all of the time, in the service of The Miller Construction Company; but that there were very strong reasons to induce such belief even in the mind of a man much more intelligent than he. In a word, the testimony produced on the part of the plaintiff was fairly calculated, if accepted by the jury as true, to shatter the single line of defense interposed by the defendant.
Viewing the testimony in this light, as we do, we cannot escape the conclusion that the charge of the learned trial court was inadequate to fairly present to the jury the strength of the plaintiff’s case. The learned trial judge was not bound to advert to the testimony in detail at all, but having undertaken to do so, he was bound to so present it that the fair weight of the plaintiff’s contention would not be diminished by such presentation. "When
Judgment reversed and a venire facias de novo awarded.