Wells v. Frutchey, 274 Pa. 305

Wells v. Frutchey

274 Pa. 305 | Pa. | 1922

Opinion by

Mr. Justice Kephart,

This is an appeal from the confirmation by the court below of an award by the Workmen’s Compensation Board. Claimant’s husband, Clinton Wells, was employed as a lumberman by the firm of Frutchey & Horton, manufacturers of ties and props. In addition to his daily wage he was to receive one-third of the profits from the operation, if any, without any engagement to share the losses or obligations incident thereto. He was not a copartner.

When the claim petition was filed, notice was given the employers, who, in turn, notified appellant, the Travelers Insurance Company. This company voluntarily intervened in right of the employers, and filed an answer wherein the fact of employment, as well as liability to compensate for the injury, was denied. The only defense to the claim before the referee and the board was, deceased was not an employee within the meaning of the act, and that the award did not accord with the findings of fact.

*308The question here raised, that the referee’s findings were insufficient to sustain an award against the insurance carrier in the absence of some determination or adjudication of the insurance contract, is not properly in the case. Had the insurance carrier submitted this defense to the referee and the board for decision, it might be in a better position to urge this question. So far as an order against the carrier is concerned, it could have set up the extent of its relation to the employer and whether it was liable under its insurance contract to compensate claimant. But the answer did not deny a coverage for the employment of Wells, he being, as it now claims, a partner. There are no findings upon which partnership could in any sense be predicated, or that the employment as found was not within the policy. While appellant denied Wells was an employee killed in the course of employment, it admitted its liability to the claimant if he was an employee; and, by intervening, without setting up any different character of defense than mentioned, there appeared bn record an admission of liability for any employment under its contract. The burden assumed by the. company it carried to final conclusion, with the result that the referee found “claimant’s husband was an employee killed in the course of employment, and that the compensation insurance was secured......from the Travelers Insurance Company,” covering this employee. This finding is conclusive on us, as the claim arose prior to the Act of 1919: McCauley v. Imperial W. Co., 261 Pa. 312, 329; McCarl v. Houston Boro., 263 Pa. 1, 2; Catlin v. Pickett & Co., 262 Pa. 351, 353; Hancock v. P. & R. Ry. Co., 264 Pa. 220, 221.

Insurance carriers are not permitted to limit their risks without due observance of the acts in relation thereto; however, we do not here determine they could limit the risk as here stated. What we decide is that, the referee having found claimant’s husband was an employee injured in the course of employment, and there being nothing on the record that can be reviewed raising *309the question as to the insurance company’s nonliability on its contract, having voluntarily appeared in the case, to defend generally, it cannot now complain of an adverse result as to its liability to the employer for this employment. Where it appears, the employer made no defense and the insurance carrier intervened and jected at every step in the proceedings, the latter is in court by its voluntary act, and, after a decision against it, is estopped from claiming to be a stranger to the record; the award against the carrier for the full amount of the claim will be sustained: Chase v. Emery Mfg. Co., 271 Pa. 265, 270.

Decree affirmed, at cost of appellant.