Bigley v. Smith

• Decision Date: 25 September 1942
• Docket Number: 7002
• Citation: 129 P.2d 658,64 Idaho 185
• Parties: A. J. BIGLEY, Respondent, v. MRS. F. C. SMITH, doing business as Blue Arrow Cafe, and CHARLES SMITH, Defendants, and STATE INSURANCE FUND, Appellant
• Court: Idaho Supreme Court

129 P.2d 658

64 Idaho 185

A. J. BIGLEY, Respondent, v. MRS. F. C. SMITH, doing business as Blue Arrow Cafe, and CHARLES SMITH, Defendants, and STATE INSURANCE FUND, Appellant

No. 7002

Supreme Court of Idaho

September 25, 1942

Rehearing denied October 20, 1942.

WORKMEN'S COMPENSATION-CASUAL EMPLOYMENT.

1. An injury arising from an industrial accident, while employee is engaged in casual employment, is not compensable unless prior to accident, the employer elected in writing filed with Industrial Accident Board, that the provisions of the law shall apply to it. (I.C.A., sec. 43-904, subd. 3.)

2. "Casual employment", and not a "casual, or occasional employee", is excluded from application of Workmen's Compensation Law. (I.C.A., sec. 43-904, subd 3.)

3. Evidence established that work being done by compensation claimant when injured in repairing ceiling of a business building for a person who owned several buildings and who employed claimant to repair buildings when they needed repair was "casual employment" within exclusion of Workmen's Compensation Act. (I.C.A., sec. 43-904, subd 3.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Injury arising from an industrial accident, while the employee is engaged in casual employment, is not made compensable by the workmen's compensation law unless prior to the accident, the employer elected, in writing, filed with the Industrial Accident Board, that the provisions of the law should apply to it.

II. Idaho Code Annotated, sec. 43-904, subd. 3, excludes "casual employment", not a "casual or occasional employee", from the application of the workmen's compensation law.

III. Evidence examined and found to show employment to be casual within the meaning of I.C.A., sec. 43-904, subd. 3.

Rehearing denied October 20, 1942.

APPEAL from an order of the Industrial Accident Board awarding compensation to an injured employee. Reversed.

Order reversed, with costs to appellant.

Frank L. Benson for appellant.

The provisions of the Workmen's Compensation Law do not apply to casual employment "Unless prior to the accident for which the claim is made, the employer has filed with the Industrial Accident Board a written election providing that the Workmen's Compensation Law shall apply." (Sec. 43-904, subd. 3, I.C.A.; Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403; Dawson v. Joe Chester Artificial Limb Co., 62 Idaho 508, 112 P.2d 494.)

Respondent not represented by counsel.

MORGAN, J. Budge and Ailshie, JJ., concur. GIVENS, C. J., dissenting.

OPINION

MORGAN, J.

Respondent made claim for compensation for injuries sustained by him by accident arising out of and in the course of his employment by defendant, Mrs. F. C. Smith, doing business as Blue Arrow Cafe. The Industrial Accident Board made an award of compensation in favor of claimant, from which State Insurance Fund has appealed. It makes ten assignments of error. We find it necessary to discuss only assignment numbered VIII, wherein appellant asserts: "The Board erred in failing to find that the employment in this matter was casual."

[I] Injury arising from an industrial accident, while the employee is engaged in casual employment, is not made compensable by the Workmen's Compensation Law unless, prior to the accident, the employer elected, in writing, filed with the Industrial Accident Board, that the provisions of the law shall apply to it. Idaho Code Annotated, sec. 43-904, provides:

"43-904. Employments not covered--Election of coverage.--None of the provisions of this act shall apply to:

"* * * *

"3. Casual employment;

"* * * *

"Unless prior to the accident for which the claim is made, the employer had elected in writing filed with the board, that the provisions of the act shall apply."

[II] That section excludes "casual employment" not a "casual, or occasional, employee" from the application of the Workmen's Compensation Law. (Flynn v. Carson, 42 Idaho 141, 243 P. 818; Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270.)

Respondent's testimony shows that Mrs. Smith was the owner of four or five buildings in Twin Falls, which she rented to others for business purposes; that she employed him to repair these buildings when they needed repair; that his employment by her was not steady, but irregular, depending on one or more of the buildings needing to be repaired; that during the time the understanding and agreement existed between them, that he should repair the buildings when they required it, he worked for people other than Mrs. Smith and "If I was busy they most generally waited for me. They have waited as long as three weeks." The employment was at irregular intervals, depending on uncertain contingencies, and the amount of compensation depended on the length of time the employee was occupied at it. The injury for which respondent seeks compensation was the result of an accident which occurred while he was repairing a ceiling in a building owned by Mrs. Smith and occupied by her tenant who was engaged in a dry cleaning business, known as the "Royal Cleaners." Mrs. Smith had not elected that the provisions of the workmen's compensation law should apply to that employment.

[III] It was casual employment within the meaning of sec. 43-904, subd. 3, of our code as construed by this court. (Orr v. Boise Cold Storage Co., above cited; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403; Dawson v. Joe Chester Artificial Limb Co., 62 Idaho 508, 112 P.2d 494; and Ross v. Reynolds, 64 Idaho 87, 127 P.2d 775.)

This conclusion makes a discussion of the other assignments of error unnecessary.

The order appealed from is reversed, with costs to appellant.

Budge and Ailshie, JJ., concur.

DISSENT BY: GIVENS

GIVENS C.J., dissenting.--

It seems to me the uncontradicted testimony herein shows the employment was not casual and clearly falls within the doctrine of Dillard v. Jones, 58 Idaho 273, 72 P.2d 705, authorizing the board in awarding compensation. Mr. Bigley testified:

"A. She [Mrs. F. C. Smith] is his mother. She owns the building. She owns four or five different rental buildings.

"Q. Is she one of the defendants named in this proceeding?

"A. Yes, that's his mother.

"Q. It was Charles Smith--he is the one who asked you to do this work?

"A. His mother, she hired me to do all the repair work and Charlie had the managing of it.

"Q. Manager of the repair work?

"A. Yes, he was manager of all the repair work. *****

"Q. You have been more or less engaged in doing repair work for the past two years, have you not?

"A. Yes.

"Q. Tell us whether or not you have worked for Mrs. F. C. Smith for about a year?

"A. It was over a year.

"Q. Did you work in different buildings owned by Mrs. Smith?

"A. Yes, I worked on different buildings.

"Q. What was the nature of this work?

"A. On the roofs.

"Q. Repair work?

"A. Repair work on the roof.

"Q. Did Mrs. Smith ask you to work on the Blue Arrow Cafe doing repair work?

"A. Yes.

"Q. Tell us whether or not most of the time you did work for Mrs. Smith, during the year you were with her, did you work rather steadily, or did you work for other people too?

"A. I worked for other people.

"Q. Can you give us an idea about how much repair work you did for Mrs. Smith, and which building have you worked on--what building?

"A. Mostly on the Blue Arrow. The most work I done for them.

"Q. Any other building?

"A. Yes, four buildings on Shoshone.

"Q. Mrs. Smith owns quite a little property around Twin Falls?

"A. Yes.

"Q. She owns...