Butrin v. Manion Steel Barrel Co. , 361 Pa. 166 ( 1948 )

Chester J. Butrin and Harold A. Butrin, appellants, were, on October 27, 1939, employed by Manion Steel Barrel Company, appellee, as laborers and had been so employed for two and one-half months prior thereto. They were regularly employed 40 hours per week from 3:00 P.M. to 11:00 P.M. each working day, and their wages were calculated at 44 cents per hour. Each punched a time clock upon reporting for and quitting work, the hours for which they were paid being those shown by the time card. Neither appellant rendered any services to appellee, outside the, plant. Transportation was never furnished, nor had there ever been any agreement to furnish transportation, from the date of their employment to October 27, 1939. Appellants either walked or used a bus to go to and return from appellee's plant. They never agreed to hold themselves in readiness to report for work at any time other than their regularly scheduled hours of employment.

On October 27, 1939, about 12:00 noon, Thomas Struss, another laborer at appellee's plant, driving a truck owned by appellee company, arrived at appellants' home and told them they were to report to work immediately as it was necessary for them to assist appellee company to fill a special order. He waited for appellants who climbed into the rear of the truck. Struss was driving toward appellee's plant when the truck skidded and crashed into a concrete wall along the side of the highway. Appellants were thrown from the truck sustaining injuries for which they instituted this action in trespass against Manion Steel Barrel Company and Thomas Struss. At a trial of the case the court refused appellee company's motion for a compulsory nonsuit and its motion for a directed verdict. A jury returned verdicts against appellees in favor of Chester J. Butrin in amount of $8,000 and in favor of Harold A. Butrin in amount of $200. Thereafter a motion for judgment non obstante veredicto was granted.

A majority of this Court, in affirming the judgment entered below, concludes as a matter of law that appellants were engaged in the furtherance of their employer's business at the time of the accident. The evidence, examined in the light of prior decisions of this Court, does not justify such a conclusion.

An employer is not required to compensate an employee for injuries arising out of an accident occurring off of the employer's premises while the employee is going to or returning from work: Morucci v. Susquehanna Collieries Co., 297 Pa. 508,512, 147 A. 533; Callihan v. Montgomery, 272 Pa. 56,115 A. 889; Strohl v. Eastern Pennsylvania Railways Company, 270 Pa. 132,113 A. 62; Stahl v. Watson Coal Co., 268 Pa. 452,112 A. 14; Nilsson v. Nepi Brothers, 138 Pa. Super. 107, 9 A.2d 912. Where, however, the contract of employment provides that the employer shall provide the means of going to and returning from work, the employee is held to be actually engaged in the furtherance of the employer's business during such transportation: Morucci v. Susequehanna Collieries Co., supra; Dunn v. Trego, 279 Pa. 518, 124 A. 174; Logan v. PotRidge Coal Co., 79 Pa. Super. 421. In Nilsson v. NepiBrothers, supra, PARKER, J., (later Mr. Justice PARKER) speaking for the Court, said (p. 112): "Ordinarily the employer is not liable for the payment of compensation for an accident occurring while the employee is going to or returning from his work (Haley v. Phila., 107 Pa. Super. 405, 163 A. 917; Cronin v. American Oil Co., 298 Pa. 336, 148 A. 476), but where for the advantage of the employer the latter makes an arrangement by which he furnishes transportation to the employee coverage exists during the period of such transportation. (Knorr v. Central R. R. of N.J., 268 Pa. 172,110 A. 797; Dunn v. Trego, 279 Pa. 518, 124 A. 174; Garratt v. McCrady Construction Co., 114 Pa. Super. 579, 174 A. 808; Bock v. Reading, 120 Pa. Super. 468, 182 A. 732)." InMorucci v. Susequehanna Collieries Co., supra, this Court said with reference to cases in which the employee was held to have been within the course of his employment (p. 512-513): "In each of those cases a special contract existed to provide a conveyance for the return home, and it was found the employer regarded such contract as necessary to secure the employee's services, and such return was furthering the employer's business. But where an employer merely permits or authorizes the use of his facilities by an employee to return home, it is not considered as being in the course of employment, but as a convenience to the employee. An injury happening under such circumstances does not bring the employee within the Compensation Act." (Emphasis supplied). In Campagna v. Ziskind, 287 Pa. 403,135 A. 124, it was said (p. 410): "So, also, when to secure aservice, and as a part of the consideration, it is agreed that transportation shall be supplied to or from the place of work, the right to compensation is fixed by the beginning of the journey to such point, or the ending of it upon return: Cymbor v. Binder Coal Co., 285 Pa. 440 . . ." (Emphasis supplied). SeeKelling v. Froemming Bros., Inc., 287 Pa. 471, 135 A. 129;Haddock v. Edgewater Steel Co., 263 Pa. 120, 106 A. 196; Krapfv. Arthur, 95 Pa. Super. 468.

The testimony here adduced amply warrants the following findings of fact: Appellants and appellee company never entered into any express contract pursuant to which the company undertook, as part consideration of the employer-employee relationship, to provide transportation to and from the place of employment; appellants had regular hours of employment and were paid according to their time card record; their usual method of going to and returning from work was by walking or by bus; they never in any way agreed to hold themselves in readiness to report for special work; the company did not intend to pay, nor did it pay, for time consumed while appellants were being transported to work; on October 27, 1939, an authorized employee of appellee company, a foreman, directed another employee of the company to take a truck of the company to to the homes of appellants who were fellow workmen and bring them to the factory to work upon this special order at a time before regular working hours; and, the use of the truck was, at most, a convenience furnished to appellants on this occasion.

On the basis of the undisputed evidence in the case, the learned court below erred in holding as a matter of law that appellants were acting in the course of their employment at the time they were injured. Accordingly, their claims did not come within the purview of the workmen's compensation law and the question of the appellees' liability on the ground of negligence was therefore properly a matter for the jury.

I would reverse the judgment and remand the record for appropriate disposition by the court below of appellee's motion for a new trial.

Mr. Justice HORACE, STERN and Mr. Justice JONES join in this dissent.