The Workmen's Compensation Law Journal

SUPERIOR COURT OF PENNSYLVANIA,

LANE
V.

HORN & HARDART BAKING CO.*

1. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT "PERSONAL INJURY."

"Personal injury," as used in Workmen's Compensation Act June 2, 1915 (P. L. 736), is confined to injuries of accidental origin and such diseases as naturally result therefrom, and includes any form of bodily harm or incapacity caused by either external violence or physical force.

(For other cases, see Master and Servant, Dec. Dig. § 371.)

(For other definitions, see Words and Phrases, First and Second Series, Personal Injury.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT "ACCIDENTAL INJURIES"-HEAT PROSTRATION. Stroke from direct rays of sun, heat stroke, or prostration are "accidental injuries," within Workmen's Compensation Act June 2, 1915 (P. L. 736); it being immaterial whether prostration results from artificial heat or from sun's natural heat, directly or through heated atmosphere, if exhaustion results from heat in course of employment.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

(For other definitions, see Words and Phrases, First and Second Series, Accident.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT "ACCIDENT."

Under Workmen's Compensation Act June 2, 1915 (P. L. 736), and particularly section 301, death from accident in course of employment means death resulting from unforeseen violence to physical body in course of employment, as distinguished from ordinary or occupational diseases; "accident" being an event occurring without foresight or expectation, but casually or fortuitously.

(For other cases, see Master and Servant, Dec. Dig. § 372.)

(For other definitions, see Words and Phrases, First and Second Series, Accident.)

4. MASTER AND

SERVANT-WORKMEN'S COMPENSATION LAW-"ACCIDENT IN COURSE OF EMPLOYMENT"-HEAT PROSTRATION.

An employee, overcome by heat while working at his employer's lunch counter on a hot day, and who died within two hours, suffered an "accidental injury in the course of his employment," within Workmen's Compensation Act June 3, 1915 (P. L. 738) § 301, so that his widow might recover compensation.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

COMPENSATION

5. MASTER AND SERVANT-WORKMEN'S -AGREED FACTS-RECORD IN SUPREME COURT.

Under Workmen's Compensation Act June 2, 1915 (P. L. 753, 754) §§ 422, 425, facts on which claim for compensation is based, if agreed upon

* Decision rendered, May 6, 1918. 104 Atl. Rep. 615.

Vol. LII-45.

on appeal to common pleas, should be brought before Supreme Court upon record, on subsequent appeal to it.

(For other cases, see Master and Servant, Dec. Dig. § 418[4].)

6. MASTER AND SERVANT—WORKMEN'S COMPENSATION ACT-INJURY WHILE ENGAGED IN EMPLOYMENT.

Under Workmen's Compensation Act June 2, 1915 (P. L. 736), giving compensation for personal injury or death of employee "by an accident in the course of his employment," compensation is not based on the theory that employment in which person "is engaged" is proximate cause of injury. (For other cases, see Master and Servant, Dec. Dig. § 374.)

Appeal from Court of Common Pleas, Philadelphia County.

Claim for compensation under the Workmen's Compensation Act by Mary Lane against the Horn & Hardart Baking Company. From a judgment affirming the decision of the Workmen's Compensation Board, allowing the claim, defendant appeals. Affirmed.

Argued before Mestrezat, Potter, Moschzisker, Frazer, and Walling, JJ.

Alfred D. Wiler, of Philadelphia, for appellant.
Louis Levinson, of Philadelphia, for appellee.

MOSCHZISKER, J. Mary Lane claimed compensation, under Act June 2, 1915 (P. L. 736), for the alleged accidental death of her husband, an employee of defendant. The claim was allowed by the Workmen's Compensation Board, and this decision was affirmed by the court below. Defendant has appealed.

Upon the facts involved, Commissioner Scott says:

"This case comes before the board on a petition for determination of compensation due the claimant under agreed facts. The statement of facts precludes any other cause of death than that of heat exhaustion or prostration, due to the heated condition of the atmosphere. The claimant's deceased husband was overcome by heat while working at the defendant's lunch counter, on a hot August day in 1917, and died within two hours. There is nothing in the statement to show that [the temperature of] the place where the employee was working was hotter than the outside atmosphere, or that he was affected by different heat conditions than prevailed in the community at large."

[1, 2] On the governing rules of law, the commissioner correctly

states:

"The term 'personal injury' in our act is confined to injuries of accidental origin and such diseases as naturally result therefrom, and must be held to include any form of bodily harm or incapacity [accidentally] caused by [either] external violence or physical force. * * * A stroke by lightning, a stroke from the direct rays of the sun, a heat stroke, or heat prostration, are untoward, unexpected mishaps, and accidental injuries, within the meaning of the act. * * * It is immaterial whether the heat prostration is produced by artificial heat, or by the natural heat of the sun, directly or through the heated atmosphere, if the exhaustion comes from heat in the course of employment."

[3, 4] In cases such as the one at bar, the character and cause of the injury must be considered, in order to determine whether the results complained of are properly attributable to "accident" within the meaning of that term as used in the act of June 2, 1915 (P. L. 736), supra; for, wherever death is mentioned in the statute, it means death resulting only from unforeseen violence to the physical structure of the body and its

resultant effects (section 301, P. L. 738), or, in other words, death from "an accident" happening in the course of the deceased person's employment, as distinguished from either ordinary or occupational disease developed during the course of such employment; these latter not being within contemplation of the act. This subject is fully discussed in McCauley v. Imperial Woolen Co., 104 Atl. 617.

The learned commissioner is not without authority in holding heat prostration, under circumstances such as those at bar, to fall within the meaning of the word "accident," as that term is employed in modern compensation legislation, and, we may add, as it is used in the law of insurIn Ismay, Imrie & Co. v. Williamson, Law Rep. A. C. 1908, 437, 439, Lord Loreburn, speaking for the House of Lords, said:

ance.

"This man died from an accident. What killed him was a heat stroke, coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions, which experience, in this instance, had not taught. It was an unlooked-for mishap in the course of his employment. In common language, it was a case of accidental death."

See, also, Maskerý v. Lancashire Shipping Co., decided by the Court of Appeals, England, and reported in 7 Butterworth's Workmen's Compensation Cases, 428, 430, where the engineer on a steamship met his death from a heat stroke while crossing the Red Sea. The contention of defendants was that they were not liable "because the Red Sea is always very hot, and there was no special heat on that particular day more than people in the engine room going through the Red Sea would ordinarily be exposed to." In affirming an allowance of compensation, the court held that the Ismay Case applied, and the opinion refers to the heat stroke as "an occurrence which was in its nature fortuitous." Andrew v. Failsworth Industrial Society, 90 Law Times Reports (New Series) 611, 612, involves death from a stroke of lightning; Pack v. Prudential Casualty Co., 170 Ky. 47, 55, 185 S. W. 496, L. R. A. 1916E, 952, death from sunstroke; and McGlinchey et al. v. Fidelity Casualty Co., 80 Me. 251, 253, Atl. 13, 6 Am. St. Rep. 190, death from fright-all held to be accidental; while N. W. Commercial Travelers' Ass'n v. London Guarantee & Accident Co., 10 Manitoba Rep. (Queen's Bench) 537, holds death from frost to be within the terms "bodily injuries effected through external, violent and accidental means." Finally, N. A. Life & Accident Ins. Co. v. Burroughs, 69 Pa. 43, 51, 8 Am. Rep. 212, a case where an assured strained himself while loading hay, defines "accident" as "an event that takes place without one's foresight or expectation; Ian accident signifies happening by chance or unexpectedly, casual [or] fortuitous." Of course, neither this last ruling nor any other of the insurance cases mentioned can be looked upon as governing the present compensation claim; but all are illustrative of the liberal views entertained by the courts as to the meaning of the term "accident' in deterimning liability for death or personal injury.

[5] Section 422 of the act of 1915, supra (P. E. 753), provides that the facts on which a claim for compensation depends may be agreed upon, and, in that event, the "petition shall contain the agreed facts and shall be signed by all parties in interest." Section 425 (P. L. 754) provides that, on an appeal to the courts, such agreement shall be included in the transcript, or record, sent up for consideration. In the present instance, the agreement itself has not been physically brought before us, as it should be, but the commissioner's findings are that the statement of facts contained therein "precludes any other cause of death than that of heat exhaustion or prostration, due to the heated condition of the atmosphere"; hence we must take it no organic weakness or occupational disease can be accounted the proximate cause of the death of claimant' husband, but the casualty was attributable solely to the unexpected and violent effect of

the heat upon the physical structure of deceased's body, and this was properly held by the Compensation Board and the court below to be an accidental death within the meaning of the act.

[6] Appellant's contention that "the whole intent of this legislation [compensation law] is based upon the theory that the employment in which the person is engaged is the proximate cause of the injury," is without merit. In this connection it is sufficient to call attention to Dzikowska v. Superior Steel Co., 259 Pa. 578, 581, 103 Atl. 351. There the deceased, during an intermission in his work, while waiting for material, struck a match for the purpose of lighting a cigarette, and, as a result, his clothing ignited and he was fatally burned. We sustained an award in favor of the widow, and said, inter alia:

"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 employmnet. Under our statute compensation is given for personal injury or death of an employee 'by an accident in the course of his employment.'

In the present case, the court below rightly held that claimant's husband died from an accident happening in the course of his employment, within the meaning of the act of 1915.

The assignments of error are overruled, and the judgment sustaining the allowance of compensation is affirmed.

SUPREME COURT OF PENNSYLVANIA.

MCCAULEY
V.

IMPERIAL WOOLEN CO. ET AL.*

1 MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-REFEREE-STATUS.

A compensation referee is an officer of Workmen's Compensation Board, with defined powers, and his records belong to files of court, and on appeal, are before it for review, within limitations of Workmen's Compensation Act June 2, 1915 (P. L. 736, 751, 753) §§ 409, 419-421.

(For other cases, see Master and Servant, Dec. Dig. § 417 [44].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-REFEREE'S FINDINGS-REVIEW BY COMPENSATION

BOARD.

Under Workmen's Compensation Act June 2, 1915 (P. L. 736), Compensation Board, if not sustaining referee's decision, may not reverse on question of fact, but must grant a hearing de novo, and substitute its own findings and conclusions, and, on appeal on alleged error of law, must act solely on referee's record, and sustain, reverse, or modify his final order. (For other cases, see Master and Servant, Dec. Dig. § 416.)

* Decision rendered, May 6, 1918. 104 Atl. Rep. 617.

3. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-APPEAL TO COMPENSATION BOARD.

Appeals to Workmen's Compensation Board, taken under Workmen's Compensation Act June 2, 1915 (P. L. 753) § 420, amount to a writ of error, and if taken under section 421 amount to a motion for a new trial before board, instead of referee.