of the Workmen's Compensation Board awarding compensation, defendants appeal. Affirmed. Argued before Stewart, Moschzisker, Frazer, Walling, and Simpson, JJ. Henry A. Craig and Russell Duane, both of Philadelphia, for appellants. Louis Levinson, of Philadelphia, for appellee. FRAZER, J. William S. Murdock, the husband of claimant, was employed as a lineman by the New York News Bureau, and, while engaged in the course of his employment at Eighth and Master streets in the city of Philadelphia, came in contact with a wire heavily charged with electricity, which caused him to fall from a pole upon which he was working to the street, a distance of 28 feet. Upon striking the ground his knees "doubled up" and came violently in contact with his chest, causing considerable pain during the day, and indicating the fracture of one or more ribs. Whether or not his ribs were broken, the physician who made an examination was unable to determine. The pain in the chest continued, making breathing difficult. After three days Murdock returned to his place of employment, but, on account of the constant severe pain in his chest, did not engage in his usual work, and later was obliged to return home and again call a physician, who then diagnosed his case as lobar pneumonia, from which he died ten days after the accident. These facts as stated are taken from the findings of the referee in proceedings under the Workmen's Compensation Act, and the conclusion of the referee, based upon them, is that death was due to lobar pneumonia resulting from the fall. The referee's findings were confirmed by the Workmen's Compensation Board, and the decision of the board was, in turn, sustained by the court below. From the action of the court in dismissing exceptions to the conclusions this appeal followed. [1, 2] The single assignment of error is to the decision of the court below in dismissing exceptions to the action of the board, anu in refusing to set aside the award on the ground of there being no evidence to sustain the conclusion of the referee to the effect that the disease causing Murdock's death was the result of the accident. This contention raises a question of law which the board had power to determine under section 420 of the Workmen's Compensation Act of June 2, 1915 (P. L. 736), upon consideration of the legal adequacy of the testimony taken before the referee. McCauley v. Imperial Woolen Co., 261 Pa. 312, 319, 104 Atl. 617. Review by this court under the above act is on certiorari only, and, while we may not consider the testimony, we are authorized to examine the findings and reasons stated in the adjudications of the board and of the referee, as well as of the court below, to determine whether or not the decision is founded upon a proper basis. McCauley v. Imperial Woolen Co., supra. [3, 4] Appellant's contention is that the findings of the referee do not show his conclusions to be based upon proper testimony of experts to the effect that the disease from which Murdock died was the result of the injury received at the time of the accident, and, further, they also fail to indicate he was not exposed or subject to other conditions from which the disease might have been contracted, and that consequently the conclusion of the referee was without proper foundation in fact. With this contention we cannot agree. The findings of the referee clearly show the injury to the chest resulted in continuous pain from the time of the accident until the 1919.] LEARY v. McILVAIN. (Pa.) 453 trouble was diagnosed by the physician as lobar pneumonia, and we find nothing in the record to justify the inference that, between the time of receiving the injury and the development of the disease, there were other causes from which pneumonia might have been contracted. That the physician failed to discover a fractured rib does not detract from the weight to be given the undisputed facts that a blow on the chest received was followed by continuous pain, resulting a week later in the disease which finally caused death. The nature of the injury and its resultant effects, followed so closely by the development of the disease, constitute sufficient evidence to support the conclusion of the referee and the court below, particularly as a consideration of the record indicates ample expert medical testimony upon which the referee based his conclusion that the injury to the chest was the proximate cause of the disease which terminated in the death of claimant's husband. The judgment of the court below is affirmed. SUPREME COURT OF PENNSYLVANIA. LEARY V. McILVAIN ET AL.* MASTER AND SERVANT-AWARD BY WORKMEN'S COMPENSATION BOARD-EVIDENCE-AFFIRMANCE. Decision of Workmen's Compensation Board that woman was entitled to compensation for husband's death as result of accident or injury in course of his employment held sustained by evidence that his bruised body was found between wheels of wagon in a washout, that he was a sober man and in good health, and report of coroner's physician stated that death was probably due to injuries. (For other cases, see Master and Servant, Dec. Dig. § 405 [4].) Appeal from Court of Common Pleas, Philadelphia County. Proceedings by Marguerite F. Leary against J. Gibson McIlvain and another, trading as J. Gibson McIlvain & Co., and the Manufacturers' Casualty Insurance Company. From a judgment sustaining an award of the Workmen's Compensation Board, defendants appeal. Affirmed. Argued before Stewart, Moschzisker, Frazer, Walling, and Simpson, JJ. Archibald T. Johnson and Russell Duane, both of Philadelphia, for appellants. Jacob Mathay, of Philadelphia, for appellee. FRAZER, J. Claimant is the wife of Dennis F. Leary, whose dead body was found by a park guard, lying under a wagon attached to a *Decision rendered, February 10, 1919. 106 Atl. Rep. 785, 454 4 WORKMEN'S COMPENSATION L. J. (Pa.) [Sept., team of horses he was employed to drive; the accident having occurred while deceased was returning the team to the stable at the end of his day's work. A claim made before the Workmen's Compensation Board was resisted on the ground that no evidence was adduced establishing the death to be the result of an accident or injury occurring in the course of employment. This contention was sustained by the referee and the claim disallowed; on appeal, however, to the board the decision was reversed, and an award made in favor of claimant. This award was subsequently set aside by the court of common pleas for the reason the board was without authority to reverse the referee's findings, unless after a hearing de novo, which was not had, and the case remanded to the board, with directions to proceed in the manner provided by the statute, and make such disposition of the claim as the evidence produced before them warranted. At the hearing the parties offered no evidence, but agreed the board should adopt and consider, as proofs in the case, the testimony taken before the referee as though heard by it (McCauley v. Imperial Woolen Co., 261 Pa. 312, 319, 104 Atl. 617), and, pursuant to that agreement and upon consideration of all the evidence in the case, an award in favor of claimant was made, from which defendants again appealed and upon dismissal of their exceptions by the common pleas, the present appeal was taken. The contention here, as in Murdock v. New York News Bureau, opinion filed herewith, is that the record is destitute of evidence to support the conclusion reached by the board to the effect that deceased met his death as the result of an accident occurring in the course of his employment within the meaning of the Workmen's Compensation Act (P. L. 1915, p. 736). The findings and opinions filed show that Leary, who was a teamster in the defendant's employ, was found dead about 7:30 on the evening of December 29, 1916, in Cobb's Creek Park, near Sixty-fourth and Webster streets, Philadelphia. His body was lying under the wagon with the left front wheel against the face and the reins in his hands. The wheel of the wagon, as well as the body of deceased, upon which there were bruises and blood stains on the neck, was in a gully, or washout, when discovered by the park officer. No post mortem was made to ascertain the cause of death; the report of the physician filed by the coroner, however, stated death was probably due to bodily injuries. Deceased was a man in excellent health, and left defendant's place of business early in the morning with his horses and wagon to deliver lumber in a nearby town. Accompanying him on a similar errand was a fellow employee named Dempsey, also driving a team. The day was "bitterly cold," and on the way home, Leary having complained of being chilly, the two drivers stopped at a saloon, where each obtained a drink of liquor. Upon leaving the saloon Dempsey drove his team in advance of Leary. Nothing appears to show what happened subsequent to this until Leary's body was discovered, although there is a finding that deceased was seen driving in various directions in the neighborhood shortly before his body was found, apparently attempting to either find his way home, or for the purpose of avoiding streets in the neighborhood at the time considerably torn up owing to improvements under way. The record discloses no previous illness of deceased and though he had taken "a very small whisky" because of the cold, he had always been temperate and never known to be intoxicated. The board accounted for deceased's presence in the park by stating he had evidently lost his way in the dark, and concluded death was caused by reason of the front wheel dropping into the gully and throwing deceased forward and under the wagon, and, further, that death occurred, in the course of his employment, from injuries sustained by his fall. While it is true the referee previously reached a contrary conclusion, the difference of opinion based on the testimony presented, does not warrant interference by this court. The findings referring to the condition and position of the body, and the circumstances previous to its discovery, as well also as that referring to the wounds on the body, indicate the board had before it evidence which fairly supported its conclusion that death resulted from injuries received in an accident occurring in the course of deceased's employment. The judgment is affirmed. COURT OF CIVIL APPEALS OF TEXAS. WESTERN INDEMNITY CO. V. PRATER ET AL. (No. 2125.)* MASTER AND SERVANT—WORKMEN'S COMPENSATION— "EMPLOYEE”—INDEPENDENT CONTRACTOR— EVIDENCE. Evidence showing employer's control of mode of work of hauling clay for brick manufacturing held to support finding that deceased when killed was not an independent contractor, but an "employee," as defined in Acts 35th Leg. c. 103. pt. 4, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-82); it being assumed that the statutory definition does not distinguish an "employee" from a "servant" at common law, as distinguished from independent contractor. (For other cases, see Master and Servant, Dec. Dig. § 405 [2].) (For other definitions, see Words and Phrases, First and Second Series, Employee.) Appeal from District Court, Henderson County; Jno. S. Prince, Judge. Proceedings under the Workmen's Compensation Law by Mrs. Talitha Prater and another to recover for death of O. L. Prater, employee opposed by the Western Indemnity Company. The Indemnity Company sued to set aside the award for claimants, and from judgment denying it relief and awarding recovery to claimants according to findings of the Industrial Accident Board, the Indemnity Company appeals. Affirmed. This suit was brought as provided by section 5, pt. 2, of the Workmen's Compensation Law (Acts 33d Leg. c. 179), as amended by the Act of March 28, 1917 (General Laws, p. 269 [Vernon's Ann. Civ. St. Supp. 1918, art. 5246-44]), to set aside an award based on findings of the Industrial Accident Board as follows: (1) That the Athens Pottery Company on August 21, 1917, "was a subscriber to the Employers' Liability Act." and carried a policy of insurance with appellant; (2) that on said day O. L. Prater was in the employ of said Rehearing denied June 12, 1919. 213 *Decision rendered, June 3, 1919. S. W. Rep. 355. pottery company, and as its employee "was covered by said policy of insurance"; (3) that on said day, "while in the course of his employment, said Prater sustained injuries resulting in his death"; (4) that the "average weekly wage of the said O. L. Prater at the time and prior to sustaining said injuries was $14.92; (5) that Mrs. Talitha Prater, widow of said O. L. Prater, and Harry Prater. his minor son, as his "legal beneficiaries, were entitled to receive of and from the Western Indemnity Company a weekly compensation of $8.65 for the death of said O. L. Prater for a period of 360 weeks, beginning August 21, 1917." The ground upon which appellant sought to have the award set aside was that said O. L. Prater at the time he was injured was not an employee of said pottery company, and "was not covered by said policy of insurance as such employee or in any other capacity." It appeared from testimony before the court that the pottery company obtained clay it used in its business of making jugs, etc., from a pit about half a mile from its plant. The company employed four or five men with teams to haul the clay, paying them 35 cents per ton for the service. O. L. Prater was one of the men employed, and had been engaged in the work during about a year before August 21, 1917, when he was killed. He did not himself always drive the team he used, but hired a man to drive it during part of the time. He had nothing to do with mining or excavating the clay. It was mined by men employed by the pottery company for the purpose. Those men, or others employed by the pottery company, loaded or assisted Prater as they did other haulers, in loading the clay on his wagon. He unloaded same without assistance at places the company designated at its plant. It was while his wagon was being loaded at the pit that the clay caved in on him so injuring him as to cause him to die a short time thereafter. A man named Hunt was the pottery company's foreman at the pit, and as such hired Prater to haul clay. Hunt testified: * * * * * * The "Mr. Prater and the other hands employed like him loaded their wagons or had them loaded under my specific directions. They were liable to be discharged at any time for misconduct. They were supposed to do what I wanted them to do or be discharged. They were just to do what I said. All of those hands that worked at that place did what I said. I done the hiring of the men. Sometimes Mr. Prater drove himself, and then again he would have a hand. I done the hiring and run that part of the business right there. extent of my business there was to direct them where to get the clay, tell them what to do, show them what to do: Mr. Prater had something else to do except to haul clay. He had to do what I told him to. If I didn't want him to haul clay, I would put him at something else. I had them scraping, had them plowing, and had them doing lots of things. I didn't have Mr. Prater doing other things, just hauling clay, the day he was killed. But all of them does scrape, plow, anything I say for them to do. I hired Mr. Prater to haul clay. He was to get 36 cents per ton for hauling clay. When I wanted him to do anything else, I paid him 30 cents an hour for it, paid him 30 cents an hour for his team and driver. * * * Mr. Prater didn't keep a driver all of the time, but he usually kept a driver. * If the driver didn't suit, I would send him back home. * * * I had nothing to do with the driver, except if an incompetent driver was sent I stopped him. If they sent a man that wouldn't do a day's work, we didn't have anything to do with him. As to its being a fact that Mr. Prater could work or lay off a day or two if he wanted to they always asked me if they wanted to lay off. If we wanted them to haul, they hauled, and if they don't want to haul, they stay at home. We have got to have it hauled. We wouldn't keep one in our employ that did insufficient work." * * |