Summary
In Farrell, we held that a salesman representative of a liquor company was not in the course of his employment because he was not "at the time he was injured or for some time prior thereto engaged in his employer's business."
Summary of this case from Bethlehem Steel Corp. v. W.C.A.BOpinion
Argued February 8, 1973
March 7, 1973.
Workmen's compensation — Course of employment — Engaged in employer's business — Question of law — Findings of fact — Scope of appellate review — Sufficient evidence.
1. In a workmen's compensation case the issue of whether an employe when injured is engaged in his employer's business is one of law, but its determination must be based upon facts. [70]
2. In a workmen's compensation case findings of fact of the Workmen's Compensation (Appeal) Board if supported by the evidence are binding upon the reviewing court whether the facts are adverse to or in favor of the claimant. [70-1]
3. Evidence that a liquor salesman, who claimed he was beaten after trying to make a business phone call, was drinking in a tavern which was not a business, account, became obnoxious, was ordered from the premises and fell down outside the establishment thereby injuring himself, supports a conclusion by the Workmen's Compensation (Appeal) Board that the injured party was not occupied in his employment at the time of his injury. [71-2]
Argued February 8, 1973, before President Judge BOWMAN and JUDGES CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 309 C.D. 1972, from the Order of the Court of Common Pleas of Philadelphia County in case of Frank J. Farrell v. The House of Seagram, Inc., and/or Four Roses Distillers Co., No. 4020 October Term 1971.
Petition for workmen's compensation. Petition denied by Workmen's Compensation Board, reversing referee. Claimant appealed to the Court of Common Pleas of Philadelphia County. Board affirmed and appeal dismissed. HIRSH, J. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Fred Lowenschuss, with him Fred Lowenschuss Associates, for appellant.
Joseph J. Murphy, with him Robert J. Murphy, Thomas Murphy and Murphy, Murphy Murphy, for appellees.
The only issue in this workmen's compensation case is whether the claimant, Frank J. Farrell, was ". . . actually engaged in the furtherance of the business or affairs of [his] employer . . . " on an evening in December 1963 when he suffered serious injuries on the sidewalk adjacent to a Philadelphia tavern called The Pub.
Section 301 (c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P. S. § 411.
The Workmen's Compensation Board, which the court below affirmed, concluded that the claimant was not at the time he was injured or for some time prior thereto engaged in his employer's business. While the issue so decided was one of law, its determination must necessarily be based upon the facts. Walden v. Williams Bros. Corp., 167 Pa. Super. 289, 74 A.2d 762 (1950); Wolfingbarger v. Addressograph-Multigraph Corp., 188 Pa. Super. 136, 146 A.2d 309 (1958); Peccon v. Francis Market, 207 Pa. Super. 36, 215 A.2d 261 (1965). It is for the compensation authorities to determine the facts and their findings if supported by competent evidence are binding upon reviewing courts. White v. Morris, 182 Pa. Super. 454, 127 A.2d 748 (1956). This is so whether the facts are adverse to or in favor of the claimant. Landis v. General Motors Corp., 180 Pa. Super. 332, 119 A.2d 645 (1956).
The claimant was employed by the House of Seagram or Four Roses Distillers Co., the named employers, as a salesman representative. He called on large users of alcoholic beverages, attempted to induce them to use his employer's products and made purchases for them at state stores. In his claim petition he alleged that he was ". . . seeking to make a business telephone call [at The Pub] when he was set upon, beaten and robbed."
There was extensive evidence concerning the claimant's activities on the evening in question. The Board rejected the claimant's testimony that he entered The Pub at about five o'clock in the evening ". . . looking for a phone, I didn't get a phone, I came back out and this is when something hit me from behind and that's all I know." It accepted the testimony of the manager of The Pub that the claimant, was in The Pub for two hours during which he was "obnoxious" to the employees and staff, was ordered from the premises six to eight times only to reappear, and finally, in attempting to assault the manager, fell to the ground just outside the street entrance to the establishment; that or the claimant's employment superior who testified that The Pub was not a business account assigned to Mr. Farrell; and that of the police who, apparently summoned by employees of The Pub, found claimant injured on the sidewalk.
The claimant contended at the hearings that he entered The Pub for the additional purpose not alleged in his claim petition of promoting his employer's products.
The claimant also contends that the fact that there were cases of whiskey in the trunk of his automobile parked nearby, proves that he was in the course of his employment while at The Pub. The mere possession of the paraphernalia of the job does not, of course, prove engagement in employment.
In view of the Board's findings, the case of Maher Hallmark Cards, Inc., 207 Pa. Super. 472, 218 A.2d 593 (1966), principally relied on by the claimant, does not aid his cause. In Hallmark, the employee had worked all day on an out-of-town assignment and then drank beer and discussed work with fellow employees at a nearby bar. The Board and the Superior Court concluded that the employee was still occupying himself consistently with his employment when killed in an automobile accident on his way home. Here, the Board made findings concerning the claimant's conduct and employment clearly supporting a contrary, conclusion, to wit, that Mr. Farrell while at The Pub was not occupied in his employment. We agree. That there are some points of similarity between the facts in this case and those of Hallmark, or of other cases cited by the appellant, is of no consequence in view of the vast differences between the claimant's conduct during the several hours before his mishap and that of any successful workmen's compensation claimant of which we have found a record.
The Board's order is affirmed.