Arbogast v. Jerome Cooperative Creamery
| Citation | 65 Idaho 556,149 P.2d 230 |
| Decision Date | 09 May 1944 |
| Docket Number | 7176 |
| Parties | ALLAN S. ARBOGAST, Respondent, v. JEROME COOPERATIVE CREAMERY and STATE INSURANCE FUND, Surety, Appellants |
| Court | United States State Supreme Court of Idaho |
Rehearing denied June 12, 1944.
Workmen's compensation
Making drying trays which were an essential part of equipment of creamery engaged in manufacture of casein was as to creamery only "casual employment" excluded from coverage of Workmen's Compensation Act, in absence of showing of a regular or periodical custom of creamery to employ workmen to make such trays or that employment of workmen to make trays was essentially a part of creamery's business. (I.C.A., sec. 43-904.)
Rehearing Denied June 12, 1944.
Appeal from the Industrial Accident Board.
Reversed.
Frank L. Benson for appellants.
An outworker does not come within the purview of the Workmen's Compensation Law. Sec. 43-904 I. C. A.
An outworker is a person to whom articles or materials are given to be treated in any way on premises not under the control or management of the person who gives them out. Sec. 43-1808 I. C. A.
Casual employment does not come within the purview of the Idaho Workmen's Compensation Law. (Sec. 43-904, I. C. A.; Flynn v. Carson, 42 Ida. 141, 243 P. 818; Orr v. Boise Ice & Cold Storage Co., 52 Ida. 151, 12 P.2d 270; Rabideau v. Cramer, 59 Ida. 154, 81 P.2d 403; Dawson v. Chester, 62 Ida. 508, 112 P.2d 494.)
If the hiring be incidental or occasional for a limited and temporary purpose, the employment is casual and covered by the exception contained in Sec. 43-904, I. C. A.; Flynn v. Carson, 42 Ida. 141, 243 P. 818; Orr v. Boise Ice & Cold Storage Co., 52 Ida. 151, 12 P.2d 270; Rabideau v. Cramer, 59 Ida. 154, 81 P.2d 403; Dawson v. Chester, 62 Ida. 508, 112 P.2d 494.
In a compensation case the burden of proof is upon the claimant. Rand v. Lafferty Transportation Co., 60 Ida. 507, 92 P.2d 786; Nistad v. Winton Lumber Co., 59 Ida. 533, 85 P.2d 236; Nelson v. Tesimini Timber Co., 59 Ida. 529, 84 P.2d 566; Suren v. Sunshine & Co., 58 Ida. 101.
S. T. Lowe for respondent.
The respondent was not engaged in casual employment at the time of the accident, for:
A. It is casual employment, not a casual employee, that is excluded from the benefits of the Workmen's Compensation Statute. (I. C. A., Sec. 43-904; Flynn v. Carson, 42 Ida. 141, 243 P. 818; Orr v. Boise Cold Storage Co., 52 Ida. 151, 12 P.2d 270; Dillard v. Jones, 58 Ida. 273, 72 P.2d 705; Rabideau v. Cramer, 59 Ida. 154 at 156, 81 P.2d 403.
When a company is engaged in business and it is necessary from time to time to make needed repairs or to construct new material to be used in the business, the employment is not casual. (Dillard v. Jones, 58 Ida. 273, 72 P.2d 705; Holmes Creamery Assn. v. Industrial Com., 167 Wis. 470, 167 N.W. 808; Baugh v. Rogers, (Cal.) 138 P.2d 757.)
Appellant Jerome Cooperative Creamery was a manufacturer of casein at Burley. Trays for drying the casein were part of its necessary equipment. These trays were made of wood and screen material on which the casein was placed and dried. The company employed Theodore Arbogast and his brother, claimant, to manufacture these trays, for which they were to receive 50c a tray and $ 1.00 an hour for sawing the wood to the proper dimensions. The work was to be done on Theodore Arbogast's premises and on the premises of the two lumber companies where the lumber was secured and sawed by the Arbogasts with the equipment of the lumber companies. Claimant, while ripping the wood, suffered a severe injury to his hand, for which he asks compensation from the company and the fund as its insurance carrier. The claim is resisted on the ground that the claimant was an outworker or a casual employee. The board found he was neither and awarded compensation.
While these trays were a necessary part of the company's equipment and undoubtedly had to be made or purchased from time to time as they might wear out or new equipment was needed, there was no evidence to show that it was the regular or periodical custom of the company to employ workmen to make these trays. It is not shown that it is essentially a part of the creamery company's business in the manufacture of casein to employ workmen to make these trays. Making of the trays was as to the company only casual and falls within the application of the rule announced in Orr v. Boise Cold Storage Co., 52 Ida. 151, 12 P.2d 270; Rabideau v. Cramer, 59 Ida. 154, 81 P.2d 403; Dawson v. Joe Chester Artificial Limb Co., 62 Ida. 508, 112 P.2d 494; Ross v. Reynolds, 64 Ida. 87, 127 P.2d 775; Bigley v. Smith, 64 Ida. 185, 129 P.2d 658.
This conclusion renders it unnecessary to consider whether claimant was also an outworker.
The order of the board is reversed.
CONCUR BY: BUDGE
The Jerome Cooperative Creamery (hereinafter referred to as the Creamery) owned and operated a plant in Burley, Idaho, wherein it manufactured casein exclusively. The plant was operated during 1943, when it was totally destroyed by fire. In the manufacture of casein the creamery used a large number of trays upon which the casein was placed before it was put into the drier. The trays are constructed of wood with a wire screen on which the casein is placed. One Ross, manager of the Creamery, met Theodore Arbogast, brother of respondent, about the middle of April, 1943, and told him he had a job for him making casein trays. Theodore Arbogast told Ross that the only way he could take the job would be to do it in his spare time when he didn't have anything else to do. It was agreed that Theodore Arbogast would make a few trays and see what it would cost to make them, then they would agree upon a price to be paid. Arrangements were made with Theodore Arbogast to order the necessary materials and to go to the creamery and get what materials were there that could be used, and then go ahead and make some trays. It was thereafter agreed between Ross and Theodore Arbogast that the creamery would pay fifty cents each for assembling the trays, and $ 1.00 per hour for sawing and ripping the lumber to be used in making the trays, and that the creamery would also pay for the use of the saws in cutting up the lumber into necessary lengths and sizes. Sometime in April Ross met the respondent, Allan S. Arbogast, and stated to him, in substance, that the creamery was badly in need of trays, and asked respondent if he would help on them, and respondent said he would. This latter statement made to respondent by Ross is the only evidence in the record that could be construed to indicate that Ross, as manager of the creamery, ever employed respondent to perform any work or labor in the construction of the trays.
It will be remembered that all arrangements for assembling trays, the price to be paid for each tray, the amount to be paid for sawing and ripping the lumber for the assembling of said trays, including the payment for the use of the saws owned by Tri-State Lumber Company and Farmer's Equity Company were made with Theodore Arbogast and not with respondent, who was not present when the agreement was made between Ross and Theodore Arbogast. The record further discloses that all the information that respondent had with reference to said arrangements was communicated to him by Theodore Arbogast. In the light of such facts the statement made by Ross to respondent, as above recited, was for the purpose of ascertaining whether or not respondent was going to help his brother in manufacturing the trays. It falls short of a contract of employment of respondent by the creamery sufficient to establish the relationship of employer and employee.
The Board found, among other findings, that "the defendant Jerome Cooperative Creamery, through its local...
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