Carrigan v. Western Radio Co., 17439.

• Decision Date: 07 December 1931
• Docket Number: No. 17439.,17439.
• Citation: 44 S.W.2d 245
• Parties: CLAYBURN E. CARRIGAN, RESPONDENT, v. WESTERN RADIO CO., EMPLOYER; ZURICH INSURANCE CO., INSURER, APPELLANT.
• Court: Missouri Court of Appeals

44 S.W.2d 245

CLAYBURN E. CARRIGAN, RESPONDENT, v. WESTERN RADIO CO., EMPLOYER; ZURICH INSURANCE CO., INSURER, APPELLANT.

No. 17439.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Darius Brown, Judge.

REVERSED AND REMANDED.

James E. Burke and Madden, Freeman & Madden for respondent.

Shughart & Johnson for appellant.

ARNOLD, J.

This is an appeal from a judgment of the circuit court of Jackson county, Missouri, affirming an award of the Workmen's Compensation Commission, in the sum of $124.18.

The facts disclosed by the record are that plaintiff (respondent) was employed on September 29, 1930, by defendant Western Radio Company, to do work around its plant. The contract of employment was oral and no mention was made as to the exact nature of claimant's duties or as to the period of time for which he was employed. He went to work at noon on September 29, 1930, and at first was engaged in unloading a shipment of radios from the cars in which they were received and placing them, by means of trucks, in the various rooms of defendant's warehouse, but he was assigned to other duties. About three o'clock in the afternoon of the day following his employment, plaintiff was injured while attempting to fasten a door in a coal chute in the basement of defendant's warehouse. The injury was sustained when a ladder on which he was standing slipped and fell, throwing him to the floor and causing an injury to his left arm from which he was disabled for a period of several weeks. For the recovery of compensation for such disability this action was brought before the Missouri Workmen's Compensation Commission.

At the time of plaintiff's injury his employer was operating under the Missouri Workmen's Compensation Act and had insured against this liability under said act, through a policy issued by the appellant Zurich Insurance Company. The injury was duly reported to the insurance company and said company made a payment to plaintiff in the sum of $15.24, taking what is known as a common law release. On November 17, 1930, plaintiff filed his claim in due form with the Compensation Commission. The claim was heard before Orin H. Shaw of the commission and an award made for $80, less the credit of $15.24, above mentioned, or $64.76, on December 23, 1930. An application for review by the full commission was filed by said employer on December 29, 1930, and on January 23, 1931, an award was made by that body in the sum of $124.18. Defendants filed due notice of appeal to the circuit court. After reviewing the record that court entered its judgment affirming the award and defendants have appealed.

In their assignments of error defendants charge the trial court erred in the following respects: (1) In affirming the award; (2) in refusing to set same aside; (3) in holding the Compensation Commission had any jurisdiction in the premises; and (4) in holding the findings of the commission were in accordance with the law. These assignments are so closely allied in their nature they may properly be considered together. No point is raised as to the regularity of the procedure herein and there is nothing in connection therewith for our consideration. The only point in issue is the contention of appellants that claimant was a casual employee and therefore not entitled to compensation under the provisions of section 3303, Revised Statutes 1929, as follows:

"Section 3303. Certain sections not applicable to certain employments — may come within law. — Sections 3300, 3301 and 3302 of this chapter shall not apply to any of the following employments:

"Third: Employments which are but casual or not incidental to the operation of the usual business of the employer."

This section of our Compensation Act is to be found in varied forms in practically every compensation act. In some States the wording is as follows:

"Employments which are but casual and not incidental to the usual business of the employer."

Comparing these acts with the Missouri section quoted, it is noted in the former the two exclusions are in the conjunctive using the word "and," while in the Missouri statute they are in the disjunctive, using "or" instead of "and." From this it is argued our legislature saw fit to exclude two classes of employment: First, employments which are but casual and second, employments which are not incidental to the operation of the usual business of the employer. It is urged that under this section if the employment be casual, the provisions of the Compensation Act do not apply, even though the employment be incidental to the operation of the usual business of the employer.

Defendants do not contend that plaintiff's injury was not incidental to the operation of the usual business of the employer but that, on the admitted facts, claimant was a casual employee, and the commission had no jurisdiction to grant him compensation. It is conceded by both parties that the only question in the case is as to whether or not plaintiff was a casual employee. The precise question involved has not been determined by any appellate court in this State. We find in reading the able briefs submitted by the parties that the courts of foreign States are apparently not agreed on this question. Numerous cases are cited by defendants defining the word casual, as applied to the various compensation acts. In Holmen Creamery Co. v. Commission, 167 Wis. 470, 167 N.W. 808, it is said:

"... an employment that is only occasional, or comes at uncertain times, or at irregular intervals and whose happening cannot be reasonably anticipated as certain or likely to occur or to become necessary or desirable is but a casual employment within the meaning of the statute."

And in the case of Western Union T. Co. v. Hickman, 248 Fed. 899, the court said:

"If hiring be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business the employment is "casual" and covered by the exception."

It is pointed out the compensation statute of Maine is similar to ours and in Pooler's case, 122 Me. 118, Atl. 590, the Supreme Court of that State defines casual employment as "employment which is irregular, unsystematic, uncertain, periodic." It must be held the rulings in the cases cited by defendants do not apply to the facts herein presented. The record evidence shows plaintiff went to work for defendant Radio Company under a contract of employment which was to continue indefinitely. Plaintiff is uncontradicted in his statement that when he went to work for the Radio Company nothing was said about the time over which his employment was to extend; that he understood the extent of his employment depended on how long the work lasted and whether or not his services were satisfactory. We find nothing in the record to the effect that his services were unsatisfactory nor that his employment was to last only for a brief period of time. Plaintiff testified that during the brief period he was employed he was performing various tasks connected with the operation of the company's business; that he worked alongside other regular employees. From these circumstances and the nature of his various tasks plaintiff could reasonably anticipate that his employment would last as long as the Radio Company's business continued, or for a reasonable time, at least.

Defendants attempt to make some point of the fact that as plaintiff was injured after he had been employed so short a time, such fact should have some bearing on the question of casual employment. We cannot accept this position as sound. The length of his service cannot serve to determine whether or not plaintiff was a casual...