Aurora Brewing Co. v. Indus. Bd. of Illinois

• Decision Date: 21 February 1917
• Docket Number: No. 11160.,11160.
• Citation: 115 N.E. 207,277 Ill. 142
• Parties: AURORA BREWING CO. v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

277 Ill. 142

115 N.E. 207

AURORA BREWING CO.

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11160.

Supreme Court of Illinois.

Feb. 21, 1917.

Error to Circuit Court, Kane County; Mazzini Slusser, Judge.

Application by Katherine Mack, widow of Gottlieb Mack, deceased, for compensation under the Workmen's Compensation Act, opposed by the Aurora Brewing Company, employer. On certiorari to review an award by the Industrial Board in favor of claimant, the award was affirmed, and the employer brings error. Reversed.

Duncan, J., dissenting.

J. C. Murphy and E. L. Lyon, both of Aurora, for plaintiff in error.

Sears & Solfisburg, of Aurora, for defendants in error.

CARTER, J.

Katherine Mack, widow of Gottlieb Mack, deceased, filed her petition with the Industrial Board of Illinois to recover under the Workmen's Compensation Act for the death of her husband, killed by an accident which happened June 10, 1914, while working for plaintiff in error. The committee of arbitration made a finding in her favor, and on review the Industrial Board also found in her favor, changing the finding in some particulars. Thereafter a writ of certiorari was sued out of the circuit court of Kane county, where the finding of the Industrial Board was affirmed. The circuit court certified that the case was one that should be reviewed by this court, and it was brought here for review.

Gottlieb Mack, a mason and plasterer, residing in Aurora, in this state, was employed by plaintiff in error, the Aurora Brewing Company, to plaster the ceiling of a room in the building which said company was erecting as an addition to its bottling shop. While engaged in plastering this ceiling, Mack was standing on a ladder placed on a scaffold. The ladder slipped, and he fell, breaking his back, and died from the effects of the accident within 48 hours thereafter. At the time he was injured he had worked about 3 days and had practically finished the job. He was being given credit for his work on a bill he owed the company. There were no other plasterers on the job, and the company furnished his helper. He was working for $4 a day, which price was agreed on between the plaintiff in error's superintendent and himself after he had begun the work. He had worked for the brewing company in previous years, once for a month and at other times for shorter periods; but this was his first work for it during 1914. He was a regular plasterer, and was kept busy at his work. It is clear from the record that the agreement as to the job and the price to be paid for it only had to do with this one job, and had no relation to any other work in the past or future; both parties to the contract being left free to make such arrangements for any work in the future as they saw fit. There is nothing in this contract that tended to give the deceased any right to expect that he would be employed again by plaintiff in error, though he might naturally think that he might be so employed from the fact that he had been given various jobs at odd times by the company during previous years.

Counsel for plaintiff in error insist that Mack's employment at the time he was injured was ‘but casual,’ and also that he was not engaged ‘in the usual course of the trade, business, profession, or occupation of his employer,’ and that for both of these reasons no recovery can be had for his injury. Section 5 of the Workmen's Compensation Act, as it read when this injury occurred and still reads, is in part as follows:

‘The term ‘employé’ as used in this act shall be construed to mean * * * every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person whose employment is but casual or who is not engaged in the usual course of the trade, business, profession or occupation of his employer.' Hurd's Stat. 1916, p. 1274.

What is meant by ‘casual’ employment, as that term is used in the statute? The lexicographers define ‘casual’ as meaning, among other things:

‘Occurring by chance or accident or without design; accidental; unexpected;’ or, ‘occurring at irregular intervals; occasionally;’ or ‘coming without regularity; incidental;’ or, ‘uncertain; haphazard.’ New Standard Dict.; Webster's New Int. Dict.

In giving the definition of the word ‘casual’ the Century Dictionary says that it is applied to:

‘A person who receives relief and shelter for one night, at the most, in the workhouse or police station, or who receives treatment in a hospital for an accidental injury;’ or, ‘A laborer or an artisan employed only irregularly.’

It is difficult, under these definitions, to lay down a general rule which will show clearly just where to draw the line between employments that are casual and those that are not. It would seem, however, that the Legislature intended the word ‘casual’ to be used as meaning ‘occasional,’ ‘irregular,’ or ‘incidental,’ in contradistinction from stated or regular. Each case, however, must be decided quite largely upon its special facts.

This court has not heretofore had occasion to construe the statute as to the meaning of this word. The decisions in other jurisdictions may be persuasive, but are not necessarily decisive. The wording of the statute in some jurisdictions is very similar to our own on this question, while in others it differs materially, so that the force and effect of these holdings will depend, somewhat, upon the wording of the statute. The British act, which was enacted previous to our own and other statutes in this country, reads:

‘That ‘workman’ does not include any person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.'

It seems quite clear that the British act is broader in scope than our own on this question. The workman under the British act can recover, even though his employment is of a casual nature, if his employment is for the purpose of the employer's trade or business, while under our act the two clauses are joined by the disjunctive ‘or,’ so that a workman cannot recover if his employment is casual. Neither can he recover if he is not engaged in the usual course of the trade, etc., of his employer. The word ‘or,’ in our judgment, cannot be understood, in the Illinois act, as meaning ‘and,’ as has been suggested. The word should not be given any but its ordinary meaning, unless the context and the principal purpose to be accomplished by all the words used seem to demand it. Such is not the case here. Under practically the same wording of the Massachusetts act the highest court of that state has held that the word ‘or’ could not be construed as meaning ‘and.’ In re Gaynor, 217 Mass. 86, 88, 104 N. E. 339, 340, L. R. A. 1916A, 363; Harper on Workmen's Compensation, § 114. It was pointed out in the opinion in the Massachusetts case just cited that the British act does not exempt the workman whose employment is but ‘casual,’ but only one whose employment is ‘of a casual nature,’ the opinion stating:

‘The phrase of our act tends to indicate that the contract for service is the thing to be analyzed, in order to determine whether it be casual, while in the English act the nature of the service rendered is the decisive test.’

That distinction applies with full force to the wording of the Illinois act as compared with the British act.

In Hill v. Begg, 1 B. W. C. C. 320, it was stated that the British act intended that the liability should be limited to employés whose employment was not casual, but stable. In Rennie v. Reid, 1 B. W. C. C. 324, the employment of a window cleaner at irregular intervals to clean windows of a dwelling house, although he may have been doing that work at intervals for a period of some years, was held to be a casual employment. In McCarthy v. Norcott, 2 B. W. C. C. 279, it was stated that the meaning of ‘casual employment’ might best be arrived at by considering its opposite. In Tombs v. Bomford (1912) 5 B. W. C. C. 338, a laborer owned a small garden surrounded by a hedge and land belonging to a farmer. He asked the farmer that the hedge be cut, as it had grown so high that it cast a shade across his garden. The farmer, being too busy, told the man to cut it himself and that he would pay him therefor. The long wood from the hedge was to be used for hop poles for the farmer. The man injured his eye while cutting the hedge. The court found that, while the employment was of a casual nature, still it was for the purpose of the farmer's trade or business, and awarded compensation. In Dewhurst v. Mather (1908) 1 B. W. C. C. 328, a woman employed to work at a particular house on Friday of every week and on alternating Tuesdays was...