SUPREME COURT OF PENNSYLVANIA. DZIKOWSKA SUPERIOR STEEL CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-INJURY DURING INTERVAL IN WORK. Under the Workmen's Compensation Law (Act June 2, 1915 [P. L. 736]) an employer is liable for compensation for an injury sustained by a workman during a short interval while awaiting the arrival of material with which to work. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) COMPENSATION 2. MASTER AND SERVANT-WORKMEN'S ACT-INJURY IN COURSE OF EMPLOYMENT-INCIDEN- A servant's acts of self-ministration, such as quenching his thirst or satisfying his hunger or protecting himself from excessive cold, which are reasonably necessary for his health and comfort, are incidental to his employment and acts of service therein within the workmen's compensation act, although only indirectly conducive to the purpose of the employment. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-INJURY IN COURSE OF EMPLOYMENT-SMOKING. It is not unreasonable for workmen to smoke out of doors during intervals in their work where it does not interfere with their duties. (For other cases, see Master and Servant, Dec. Dig. § 373.) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-"ACCIDENT IN THE COURSE OF HIS EMPLOYMENT" -SMOKING. Where an employee engaged in loading steel upon a railroad car, while awaiting the arrival of trucks with more steel, struck a match to light a cigarette, as the result of which his burlap apron, which was saturated with oil from the steel, caught on fire, and he was fatally burned, an award of compensation to his dependents was properly made under Workmen's Compensation Law, § 301, permitting a recovery for an "accident in the course of his employment." (For other cases, see Master and Servant, Dec. Dig. § 373.) Appeal from Court of Common Pleas, Allegheny County. Proceeding by Mary Dzikowska for compensation under the Workmen's Compensation Act for the death of Victor Dzikowska, opposed by the Superior Steel Company, employer, and the Etna Life Insurance Company, insurer. From a judgment dismissing exceptions to a decision of the Workmen's Compensation Board awarding compensation, the employer and the insurer appeal. Affirmed. Argued before Mestrezat, Potter. Stewart, Moschzisker, and Walling, JJ. * Decision rendered, Jan. 7, 1918. 103 Atl. Rep. 351. John G. Frazer, David A. Reed, and Reed, Smith, Shaw & Beal, all of Pittsburgh, for appellants. Allan Davis, of Pittsburgh, for appellee. POTTER, J. This is an appeal by the Superior Steel Company, and the Etna Life Insurance Company, as insurance carrier, from an order of the court of common pleas of Allegheny county dismissing exceptions to a decision by the Workmen's Compensation Board awarding compensation to the widow and minor children of Victor Dzikowska, deceased. There are five assignments of error, all to the dismissal of exceptions filed by appellants. They raise but one question, which is stated in substantially the same form by counsel for appellants and appellee, the state of the latter being as follows: "During an intermission in the work of a mill an employee struck a match supposedly for the purpose of lighting a stogie or cigarette, and as a result his clothing caught fire and he was fatally burned. Was he injured by an accident occurring in the course of his employment, within the meaning of the Workmen's Compensation Act of 1915?" Section 301 of the act of June 2, 1915 (P. L. 736), provides:That, when employer and employee shall by agreement, either express or implied, accept the elective compensation provisions of the act, "compensation for personal injury to, or for the death of, such employee, by an accident in the course of his employment shall be made in all cases by the employer, without regard to negligence, * * provided that no compensation shall be made when the injury or death be intentionally self-inflicted." In the same section it is further provided: "The term 'injury by an accident in the course of his employment,' as used in this aricle, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment; but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere. * * In the case at bar Dzikowska, appellee's husband, with other workmen, was engaged in the shipping room loading steel upon a railroad car. They had loaded all the steel at hand, and were waiting for the arrival of trucks with more steel. Dzikowska wore an apron of burlap, and also had burlap wrapped around his arms for the purpose of protecting him in handling the steel, much of which was oiled, so that his clothing was more or less saturated with oil. He stepped out of the shipping room and went into a box car, supposedly in order to smoke, as he said afterwards that in striking a match upon his trousers the burlap apron caught fire. No one saw him at the moment, but directly afterward he ran out of the car all aflame, and was so badly burned that his death resulted in a few days. In the compensation acts of some of the states compensation is allowed only for injuries "arising out of and in the course of his employment," thus attaching two conditions to the right to recover. In the Pennsylvania statute the words "arising out of" do not appear, and we are therefore relieved from the necessity of considering the question whether in this case the accident arose out of or was due to the character of the employment. Under our statute compensation is given for personal injury or death. of an employee "by an accident in the course of his employment," and it is further provided that, while the term used shall not include certain injuries caused by acts of third persons, it "shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere." [1,2] The fact that, in the present case, Dzikowska met with an accident during a short interval of waiting for the arrival of more material to load made no difference. His period of employment was not broken thereby. He was discharging precisely the duty laid upon him by his employer, and in the manner expected of him. As the court below said: “This was not a rest period. It was not a period when, by the rules of the employment, the employee was free from the duties of his employment. It was an indeterminate period of waiting for the occurrence of an event which would renew the active operations of the employment. That might be a minute, or it might be very much more. But the employee had not been called off from work, and, in renewing his work, would not be called back. He was there ready to work as soon as the material was ready for his hand." What we regard as a sound statement of the principle involved appears in 1 Honnold on Workmen's Compensation, § 111, as follows: "It cannot be said that the employment is broken by mere intervals of leisure such as those taken, for a meal. If an accident happened at such a time, there would be no break in the employment, even though the workman is paid by the hour for the time he is actually at work, especially where the accident occurs on the employer's premises, or about his property, unless the workman is doing something that is wholly foreign to his employActs of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonployment and acts of service therein within the workmen's compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the em ment ployment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food, or fresh air, or to rest in the shade." [3,4] Nor do we regard the fact that the accident resulted from his striking a match for the purpose of enabling him to smoke at that time and place as being sufficient to debar him and his dependents from benefits of the statute. It is not unreasonable for workmen to smoke out of doors during intervals of work where it does not interfere with their duties. And in this instance the foreman testified that he did not interfere with the men when they were smoking outside of the building, but he did not allow smoking inside. The evidence showed that the burlap apron worn by Dzikowska for the purpose of protecting his clothes while he was working, which was soaked with oil from the steel, first caught fire from the match and the flames communicated to the burlap wrappings on his arms, worn for the same purpose, and also oilsoaked. If he had not worn these wrappings, or if they had not become unusually inflammable by reason of the work in which he was engaged for his employer, the accident would probably not have occurred. It is not unusual for men to strike matches on their trousers, without thought of danger. The peril in the present case arose, or was at least greatly increased, by the use of burlap wrappings worn for the purposes of the workmen's employment, and their inflammable condition resulting directly from that employment. Dzikowska was, of course, negligent in striking the match upon his oil-soaked clothes. But, under the Workmen's Compensation Act of 1915, contributory negligence on the part of the workman is not a defense. The employer is liable for accidents in the course of employment, except for injuries "intentionally self-inflicted," or caused by an act of a third person intended to injure the workman for reasons personal to him. The assignments of error are overruled, and the judgment is affirmed. COURT OF CIVIL APPEALS OF TEXAS. AMARILLO. WICHITA FALLS MOTOR CO.* V. MEADE. (No. 1314.)* 1. MASTER AND SERVANT-INJURY TO SERVANT-PLEADING. While it is the general rule that an injured employee must allege and prove the specific acts of negligence proximately causing the injury, a petition in a servant's action for personal injuries by a defective motordriven sheet metal shears which alleged generally that the machine was defective, but that the servant was not familiar with the machine, and was unable to state specifically the defects therein, and that such defects peculiarly within defendant's knowledge, was sufficient. were (For other cases, see Master and Servant, Dec. Dig. § 258[12].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ASSUMPTION OF RISK. Where it appears that a company sued for personal injuries by its servant employs more than five servants, it is subject to the Workmen's Compensation Act, whether a subscriber or not, and consequently cannot plead assumption of risk. (For other cases, see Master and Servant, Dec. Dig. § 356.) 3. TRIAL-CONDUCT OF COUNSEL QUESTIONS AS TO INSUR ANCE. In a personal action it was error to admit a statement by plaintiff who had investigated the accident said he was "working for the insurance company." that one (For other cases, see Trial, Dec. Dig. § 127.) 4. WITNESSES-INCONSISTENT STATEMENTS-WRITINGS. In a personal injury action in which portion of written statement of employee made out of court was introduced to show statements inconsistent with his testimony at trial, remaining portion of statement relating to matters immaterial on issue of inconsistency was properly excluded. (For other cases, see Witnesses, Dec. Dig. § 396[2].) Appeal from District Court, Wichita County; E. W. Nicholson, Judge. Action by Noble Meade, by next friend, against the Wichita Falls Company for personal injuries. Judgment for plaintiff, and Motor defendant appeals. Reversed and remanded. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellant. Weeks & Weeks, of Wichita Falls, for appellee. *Decision rendered, March 13, 1918. Rehearing denied May 8, 1918. 203 S. W. Rep. 71. |