33 A.2d 451 | Pa. Super. Ct. | 1943
Argued May 5, 1943. This is a workman's compensation case in which claimant, who is the daughter of the deceased employee, filed a claim for funeral expenses, and for compensation on behalf of her two minor children. The Workmen's Compensation Board allowed $200 for funeral expenses in favor of claimant, and awarded compensation in favor of the minor children as the result of the death of their grandmother. Appellants are the County of Allegheny and its insurance carrier.
The three questions which have been presented were decided adversely to appellants by the board which was affirmed by the court below. The questions may be stated as follows: (1) Was deceased accidentally injured in the course of her employment? (2) Did deceased stand in loco parentis to the children of her daughter, and were said children members of deceased's household at the time of her death? (3) Could a second claim petition be considered as a petition for rehearing when the first petition had been dismissed by the referee and no appeal taken?
Our approach must be with recognition of the principle that our function as well as that of the court below is limited to determining whether there is competent and substantial evidence sufficient to support the findings of fact made by the board, as we have no power to weigh the evidence and revise those findings, *13
and thereupon reverse the final action of the board. Abbadini v.Vesta Coal Co.,
Claimant's mother was employed by the County of Allegheny as a hostess and guide for a historical building known as the Stone Manse which is located in South Park in Allegheny County. Deceased lived in a 5-room bungalow owned by the county and also located in South Park about 150 to 200 feet from the Stone Manse. On the morning of April 27, 1940, between 10:30 A.M. and 11 A.M., deceased was found lying on the floor of the dining room of the bungalow with the left side of her body on the hot air register. She was severely burned on the left side of her face and body, and died the following day.
In disposing of the first question the board found that "decedent was in the course of her employment with the defendant on April 27, 1940, and suffered an injury by accident on the premises of the defendant in the course of her duties and furthering the interests of her employer and as a result of said injuries died on April 28, 1940." There is evidence that deceased died as the result of her burns, and it is not seriously questioned by appellants that they were accidentally sustained. Appellants' argument is directed to the contention that deceased was not injured while on her employer's premises and in the course of her employment. The board found that deceased was employed by the County of Allegheny in April, 1936, and at that time moved to the bungalow in South Park, which was provided by the county without charge to deceased; that the county also furnished deceased with coal, light, *14 and water; that deceased's duties included the guiding or conducting of parties through the Stone Manse at such hours as she might be called upon to do so; that deceased's occupation of the bungalow inured and operated to her employer's benefit; and that, from the circumstances and nature of deceased's duties and irregular hours, living in and occupying the bungalow was a necessity. The finding and conclusion that deceased sustained accidental injuries while in the course of her employment with the County of Allegheny on April 27, 1940, followed the basic facts found.
Whether deceased, on the state of facts found, was in the course of her employment when fatally injured, within the meaning of the Workmen's Compensation Act of June 2, 1915, P.L. 736, art. 3, § 301, as amended by the Act of June 21, 1939, P.L. 520, § 1,
The testimony relating to her duties and hours of employment was rather meager. But on appeal we must view the evidence in the light most favorable to the claimant since the findings and awards are in favor of the claim. Dosen v. Union Collieries Co.,
To adequately perform her duties it was a reasonable inference from all the testimony that living in and occupying the bungalow was a necessity; and we *15
think it was a proper conclusion from the underlying facts that deceased was injured in the course of her employment. "The term `course of employment' has a necessary relation to the fact of employment while on the premises and a still closer relation to the fact of employment when an injury occurs off the premises":Palko v. Taylor-McCoy Coal Coke Co. et al.,
The second question offers no difficulty. The evidence was manifestly insufficient as a matter of law to establish that the minor children were members of deceased's household. The board found that deceased stood in loco parentis to her two grandchildren, and that they were members of her household at the time of her death. As we have said in Brovdy et al. v. Jones Laughlin Steel Corp.,
Section 307 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended by the Act of June 21, 1939, P.L. 520, § 1,
Although we fail to find in the evidence facts to show that deceased assumed a parental character or discharged parental duties as to her grandchildren from April, 1936, to her death on April 28, 1940, our conclusion does not depend or rest upon this phase of the question, because the children were not members of her household at the time of her death as the act prescribes. SeeHudek v. United Engineering Foundry Co. et al.,
In 1933, claimant's husband deserted her and her children. Her father-in-law allowed her to occupy his house at No. 4 Franklin Street, Millvale, Pa. Claimant testified: "Q. And following this particular separation, where did you and the children live? . . . . . . A. Well, I did not have any place really to live so my mother took over and made the home for me, she made an arrangement with my father-in-law who owned this old house that if he would give me the rent for four rooms of it free that she would provide and make the home for me . . . . . . . at that time she was engaged in the beauty business in Wilkinsburg so she had leased an apartment and she went on and paid her lease there because she wanted to vote in Wilkinsburg, then she came and run this place for me and lived with me until she took her position in South Park."
The board's fifth finding of fact reads:
"Fifth: That in January, 1936, May Wellman, deceased, took up her residence at No. 4 Franklin St., Millvale, Penna., and members of her household included a married daughter, Mrs. N.E. Werner (May W. Werner), who had previously been separated from *18 her husband and Gloria Werner, born October 11, 1925, and Nelson Eugene Werner, born April 30, 1928, minor children of Mrs. N.E. Werner, under an agreement with Mrs. N.E. Werner's father-in-law, to provide them with a house without rent and they continued to live together in said household until April, 1936, when decedent secured a political job as hostess at the Stone Manse at South Park, Allegheny County, which job she held until her death."
As found by the board, claimant and deceased lived together for about four months — from January, 1936, to April, 1936, at No. 4 Franklin Street, Millvale, Pa. Claimant's home continued to be at the latter place, while deceased had her own home for four years at South Park. They were 12 miles apart. That they were distinct and separate domestic establishments or households is indisputable. At the time of deceased's death the son-in-law and daughter of claimant and their child lived with claimant in addition to the minor children, and the son-in-law contributed to the household expenses. Another son was also at home. Deceased's contributions towards the support of her daughter and grandchildren could not alone change the situation. Parents frequently give financial assistance to their children who live in their own homes, and children help support their parents in like manner, but such acts produce no consolidation of their respective households.
The act is specific in its requirement that the grandchildren must have been members of deceased's household at the time of her death, even though she stood in loco parentis to them, to warrant the payment of compensation. This requirement was not met and the judgment which included the awards cannot stand to that extent.
The board's disposition of the third question will be sustained under the circumstances of this case. The *19
second petition, to which an answer on the merits was filed, was treated as a petition for rehearing under the appropriate section of the act. Appellants concede that the board could do this. See section 426 of the Workmen's Compensation Act of 1915, as amended by Act of June 21, 1939, P.L. 520, § 1,
In its opinion the board said: "It is now well settled law that a petition presented under an improper section of the act will not be disregarded, but will be deemed to have been presented under the proper section. Eberst v. Sears, Roebuck Co.,
We think the record discloses sufficient ground for the board's action.
The judgment is reversed to the extent that it includes awards in favor of the minor children of claimant; the balance of the judgment is affirmed. *20