C. P. of

Saylor v. Gehly's Carpet Store

York Co. employees and employer, to further advertise the business of the employer to the public, both through their employees, publicity in the local papers, and the display on the trucks that Workmen's compensation-Compensa-ilies to and from the picnic. That it had carried the employees and their fam

tion allowed for death of employee while attending a picnic given by employers to

their employees.

showed that the employee was drowned while

been the custom for the different retail merchants of the City of York to give their employees Thursday afternoon off each week as a holiday, but there was no reduction in their wages for this half day. That the afternoon of July 24, 1924, was

An award by the Workmen's Compensation Board was sustained where the testimony a Thursday afternoon on which the emattending an annual picnic of the employees of his employers, given by the employers at their expense because "it is good advertisestore" and the employers "figure it a paying

ment" and "it furthers the interest of the

proposition."

Appeal from the decision of the Workmen's Compensation Board in Florence S. Saylor v. Gehly's Carpet Store, to the Court of Common Pleas of York Co., Pa., No. 45, August Term, 1925. Award

sustained.

S. B. Meisenhelder, for the claimant. James G. Glessner and Wickersham & Neely, of the Harrisburg Bar, contra.

ployees of the defendant company were entitled to be off, but with pay. That the defendant company requested all their employees and their families to participate in this annual outing, but there was nothing compulsory on any of the employees to attend the outing. That this particular outing on July 24, 1924, was attended by all the employees of the defendant with the exception of one who was on his vacation at Roanoke, Virginia. That on July 24, 1924, the decedent worked in the store of the defendant company until noon at his regular employment, and stopped work at the same time as the other employees in order to attend the annual outing to be given by the defendant at Grissinger's Park. That at the time the decedent met with his death he was being paid his regular rate of wages, and was actually engaged in the furtherance of the business or affairs of the employer, although not on the premises of the employer or under its control." In the determination of this appeal it If these findings of fact are correct, is necessary to consider only two findings the conclusions of law reached by the of fact and the conclusions of law referee and affirmed by the board natthereon: urally follow.

Stock, J., March 11th, 1927.-This is an appeal by the defendant through the Ocean Accident and Guaranty Corporation, Ltd., an insurance carrier, from an opinion of the Workmen's Compensation Board affirming referee's findings of fact and conclusions of law, and his award.

"4. That on July 24, 1924, while at- The question is: did the decedent die tending an annual outing of the em- from "injuries sustained while the employees of the defendant company at ployee is actually engaged in the furtherGrissinger's Park, Adams County, Pa., ance of the business or affairs of the emthe decedent was swimming in Dick's ployer, whether upon the employer's dam and was accidentally drowned, of premises or elsewhere," as defined by which the defendant had due notice.' Sec. 301, of the Workmen's Compensa"5. That the defendant company had tion Act of 1915? made it a practice during the past two or three years to give an annual outing to their employees and their families, the expense of which outing was borne in its entirety by the defendant company. That the purpose of these outings was to create better fellowship between the employees, better co-operation between the

The evidence on this question rests entirely upon the testimony of Henry L. King, a member of defendant partnership, who was the only witness called on either side. He testified that all the expenses of this picnic, "transportation, dinner and anything else," were paid by the employer. That decedent received wages

:

for the time during which he attended undertaking-a picnic-planned to the picnic. That although attendance cure such good-will, is "in the furtherwas not compulsory, "we expect them to ance of the business or affairs of the emgo of course, just the same as I expect ployer." them to go to work tomorrow morning." The second purpose of the picnic was A member of the firm was present at the equally essential to the business of the picnic and superintended the activities of defendant. A contented employee, a the occasion, and cautioned decedent loyal employee, is the greatest asset of a about bathing as he went in, saying, business. What is done to stimulate co"Harry, be careful, the water is deep in operation between employer and employee there." "All the arrangements for the is "in the furtherance of the business or outing were made direct and under the affairs of the employer." firm's supervision." "The picnic was held at the sole instance and suggestion of the employer." All the employees of the firm attended "except one, who was on his vacation at Roanoke, Va., who was too far away to get back.”

The finding of the referee that the deceased was actually engaged in the furtherance of the business of the employer was a question of fact, Gallagher v. Walton Mfg. Co., 264 Pa. 29, or at most a mixed question of fact and law, Flucker The object of the picnic is stated by v. Steel Co., 263 Pa. 113; Blouss v. D., defendant to be "in the first place it is L. & W. R. R. Co., 73 Pa. Sup. Ct. 95. good advertisement, and the fellows get "Although the Act of June 26, 1919, P. better acquainted with the bosses and the L. 642, brings the evidence before us for bosses with the fellows, and we figure it review in this class of cases, our revisory is a paying proposition." "The men powers are limited to a determination of will take more of an interest in you, and the question whether there is evidence to anything you ask of them, they will get support the findings, and whether the law down and dig," "it furthers the interest has been properly applied to them": of the store." Defendant is engaged in Justice Walling. Rodman v. Smedley, et selling floor coverings and furniture. al., 276 Pa. 296-298; Carville v. Bornot "Well, it [the picnic] didn't benefit the & Co., 288 Pa. 104.

a

buying public, but it did help Gehley's The decision in Hutno v. The Lehigh Carpet House in different ways. It ad- Coal & Navigation Co., 270 Pa. 14, does vertised our place, and at the same time not control the instant case. In that case shows the people that we are right with the employee voluntarily entered our employees. And furthermore, we parade. The employee received no comwere up there at this park-we went in pensation while parading. He was not a large truck, decorated with flags and directed by one in authority to 'bunting, and had a big sign on it "Geh- parade. As Judge Koch, speaking for ley's Carpet House," and through the the court below, said, "It should be made press, you know-those things all make to appear that the parade was a business noise.'

From this testimony it follows as a logical conclusion that defendant made this picnic a matter of business-first for advertisement, second to develop a spirit of co-operation among the employees, and of loyalty to the firm.

or affair of the defendant, or it should be shown, at least, that the company, as such, made the parade its business or affair for the time being, and that Hutno was employed in furtherance of it,-But if he went in by an order of the boss during working hours, he was entitled to It cannot be denied that the field of his wages as if at his regular work, and advertisement has greatly widened, that his widow and children would be entitled new forms of advertisement particularly to compensation now that he is dead. The appealing to the good-will of a commun-condition under which he went into the ity are unusually effective and are more parade is the controlling fact in the case constantly employed. This is especially and should not be overlooked": Hutno v. true of firms engaged like defendant in Lehigh Coal & Navigation Co.; Worka business dealing directly with the pub-men's Compensation Law, 1919-185. lic. The good-will of the community, the The right to compensation for injuries good-will of their employees, is essential which are received off the premises of the to the success of their business, and an employer is limited to those injuries re

ceived while "actually engaged in the law-Adultery-Evidence-Relations of furtherance of the business or affairs of

his employer." The word "actually" has parties after arrest.

been distinguished from the word "con- On a demurrer to the evidence of the structively": Maguire v. James Less & Commonwealth, the court dismisses the jury Sons Co., 273 Pa. 85. In the instant case by the evidence. and enters such judgment as is warranted .deceased was actually engaged in the ac- The quality of testimony which is necestivities of a picnic planned by the em- sary to sustain a charge of adultery is the ployer, paid for the employer, supervised same in a civil as in a criminal case. by the employer, and during time for al case it must be proved beyond a reasononly difference is the quantity. In a criminwhich he received wages. In our opin-able doubt. In divorce, where the inferences ion that meets the requirements of "ac-of guilt are fairly deducible from the testimony, a decree is properly granted although tually engaged." there is no direct evidence to establish the offense.

While it is true that compensation was denied by the board in a former case of injuries received at a picnic, Hinkle v. Gillies Co. v. Pennsylvania Workmen's Compensation Board Decisions 395, the brief report of that case fails to show that the picnic was supervised by the employer, or that the employer was furthering his business in any way by holding such picnic.

On the other hand, in a later decision of the board, welfare work is recognized as a legitimate phase of business activity, as a form of advertisement and to stim

The

ulate co-operation amongst employees. Stevens, J., Nov. 15, 1926.-These two In this case claimant was injured while cases, the first charging adultery and the playing baseball on a team the members second fornication, were tried together of which were employees of Gimbel and resulted in verdicts of guilty. DeBrothers, and was allowed compensation. fendants have filed reasons for a new Fredhoff v. Gimbel Brothers, VII. Penn- trial, alleging that the verdicts sylvania Workmen's Compensation Board Decisions 344.

We consider the findings of fact made by the referee to be supported by the evidence, and that the conclusions of law necessarily follow from these findings.

en

And now, to wit: March 11, 1927, the award of the referee sustained by the board is affirmed, and judgment is tered in favor of plaintiff and against defendant in the sum of twenty-four hundred dollars, with costs of suit.

against the law, the evidence, the weight. of the evidence, and the charge of the court, and that the court erred in overruling defendants' demurrers to the evidence. The record does not disclose that the defendants entered demurrers. We

recall that counsel talked about demurring to the evidence, but our recollection further is that, when it was explained that such action would result in the dismissal of the jury and the entry of such judgment by the court as the evidence warranted, he decided to submit no testimony and to take the last speech to the jury. That step must be regarded as signifying Berks Co. his unwillingness to stand upon his demurrers, if entered, and as equivalent to a withdrawal thereof. There was no written request for instructions to the jury. The effect of a demurrer to the evidence is considered in Com. v. Williams, 71 Pa. Super. Ct. 311, 313, also in Com. v. Sonis, 81 id. 205, 211. In the state of the record and of the facts as we recall them, Criminal law - Demurrer - Criminal we do not find that demurrers were en

C. P. of

Commonwealth v. Mohr
Commonwealth v. Waid

tered. Nor does it seem to us that we In the absence of other evidence could override a demurrer, unless perhaps showing disposition, as for example prethe entry of judgment against the defend-vious and subsequent conduct, letters, ant might be so regarded, for as before etc., how is it to be proven better than by stated, upon the entering of a demurrer acts? What actuated the seeking of and and the joinder of issue thereon, the court being in each other's company, he a maraccepting the action of the counsel dis-ried man living with his wife and family, misses the jury and disposes of the case late at night alone with her in her apartupon the demurrer: Com. v. Williams, ment? Surely this indicated an improper supra, p. 313. The error complained of familiarity between them with reference in this regard can not be maintained.

As to the remaining reasons, these were argued together, no fault being found or argued against the charge of the court, but defendants complaining that the evidence was insufficient to support convictions in that the defendants were not identified and in that the facts and infer

ences from the evidence were not such as

to permit the jury to find that the offenses charged had been committed. Their contention is that the Commonwealth's testimony does not establish a lustful or adulterous disposition of one toward the other, relying upon Ulle v. Ulle, 15 Berks Co. L. J. 147, in which Judge Endlich sets out the essentials to establish adultery by circumstantial evi

and determine what it is worth: id. The Stock, J., February 21st, 1927.-Deact of adultery may be inferred from the fendant filed an affidavit of defense circumstances: 2 Č. J. 24; Com. v. Mos-raising certain questions of law. These ier, 135 Pa. 221; Cornelius v. Hambay, questions involve the construction of a 150 id. 359. True, circumstances sus- written contract which is made the basis ceptible of a reasonable interpretation of plaintiff's claim, consistent with innocence, and which do The material parts of this contract, not lead to guilt by a fair inference as a which is a letter from defendant to plainnecessary conclusion, are insufficient; but tiff, are as follows: "I have returned to it is equally true that where the conclusion is so far inevitable as that the sup-detailed] in exchange for the following you [certain numbered tires and tubes position of innocence can not by any just tires and tubes [enumerating make, size course of reasoning be reconciled with it, and description] * * * Mr. Dorfthese circumstances are sufficient. man will you ship these tires as soon as you receive the ones I returned and you see they are all O.K.?"

Despite the fact that the Commonwealth was erroneously restricted by the court in its refusal to permit it to show the relations of the parties subsequent to the arrest, which was admissible: 1 Wigmore on Evidence, sec. 398-400, we feel that the evidence was sufficient to sustain the convictions. The evidence as to identification was sufficient.

Defendant contends that this letter is an offer to exchange certain articles of merchandise for certain other articles. That upon its acceptance by plaintiff and the delivery by plaintiff of the articles to be delivered by it, the contract was fully executed, and neither party has a claim against the other, arising out of this transaction. That if the articles returned by defendant to plaintiff had been originYork Co. ally purchased from plaintiff and not paid for that that would constitute a different cause of action than that set up in the

And now, to wit, Nov. 15, 1926, the rules to show cause are discharged.

C. P. of

Keystone Tire & Rubber Co. V. statement. If this is a contract of ex

Dudderar Garage

change, defendant's conclusion necessarily follows.

Plaintiff maintains that this letter is not an offer to exchange certain goods for other goods. Although inartistic in

Contracts Agreement to purchase or expression, it does not amount to more

to exchange.

A letter stating "I have returned to you

[certain numbered tires and tubes detailed]

in exchange for the following tires and tubes [enumerating make, size and description] will you ship these tires as soon as you receive the ones I returned and you see

they are all O. K.?", when acted upon by the

plaintiff, the recipient thereof, in the light of the construction placed thereon by the plain

tiff and acquiesced in by the defendant, was
held to be a notice of return of certain goods
and a new order for others, and not a barter.
Sur affidavit of defendant raising
questions of law in Keystone Tire and
Rubber Co. v. James R. Dudderar, indi-
vidually, and trading as Dudderar Gar-
age, No. 128, October Term, 1926, in the
Court of Common Pleas of York Co.,
Pa. Decision in favor of the plaintiff.

James J. Logan, for the plaintiff.
Stewart & Gerber, for the defendant.

than notice of the return of certain goods, and a written order to purchase other goods. The subsequent transactions between the parties set forth in the statement show that such was the construction placed upon the letter by plaintiff, and at least acquiesced in by defendant. Under these circumstances, plaintiff's construction of the meaning of this letter is the proper one. This was not a barter. It was a mere notice of the return of certain goods and a new order for other goods to take their place, the reason for which is set forth in the letter.

And now, to wit: February 21, 1927, the questions of law raised by defendant's affidavit of defense are decided in favor of the plaintiff, and leave is granted defendant to file an affidavit of defense to the averments of facts contained in the statement within fifteen days.