Hauger v. Walker Co. , 277 Pa. 506 ( 1923 )

Opinion by

Mr. Justice Simpson,

The H. W. Walker Company, defendant, and its insurance carrier, appeal from a judgment of the court below affirming an award by the Workmen’s Compensation Board to plaintiff, as the widow of William I. Hauger. There is no dispute in this court regarding the few controlling facts, and the only legal question is whether decedent was killed while “in the regular course of the business” of defendant.

The latter was a manufacturer of ice-cream and other dairy products, and had, as its factory foreman, one Marlin G. Miller, who, as appellants admit, “was charged with the duty of keeping the plant in operation,” making “such small repairs as he could by himself, or, with the assistance of other men in the regular employ of the company, but when there was some major job of repairing to be done, he, as factory foreman, called in” decedent, who was an expert machinist, to assist in doing this character of work, While engaged in the performance of his duty under such an employment, decedent was killed in plaintiff’s place of business.

Section 104 of the Workmen’s Compensation Act of 1915, P. L. 736, provides that “The term ‘employe’ as used in this act is declared to be synonymous with servant, and includes all natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer,” etc. It will be noticed that the last clause of this section is in form conjunctive, and hence inapplicable unless the employment is not only casual, as this was, but also “not in the regular course of the business of the employer.” Defendant having made the repairing of its machinery a part of the “regular course of [its] business,” decedent was its employee by the very terms of this section, and plaintiff has the same right as the widow of any other employee who was killed or injured during the “regular course of the business.”

This conclusion is emphasized by section 203 of the Act (P. L. 738) which provides as follows: “An employer who permits the entry upon premises occupied by him or under his control, of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.” Under this also defendant became liable to plaintiff exactly as it would have been to the widow of Miller, had the latter been killed in doing this work, for defendant permitted the “entry upon [its] premises......of [decedent who was] an assistant hired by. ____[Miller] for the performance upon such premises of a part of the employer’s regular business entrusted to” Miller.

The judgment of the court below is affirmed.