Dawson v. Joe Chester Artificial Limb Company, 6839

• Decision Date: 07 May 1941
• Docket Number: 6839
• Citation: 62 Idaho 508,112 P.2d 494
• Parties: GEORGE DAWSON, Appellant, v. JOE CHESTER ARTIFICIAL LIMB COMPANY, and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

112 P.2d 494

62 Idaho 508

GEORGE DAWSON, Appellant, v. JOE CHESTER ARTIFICIAL LIMB COMPANY, and STATE INSURANCE FUND, Respondents

No. 6839

Supreme Court of Idaho

May 7, 1941

WORKMEN'S COMPENSATION-COMPENSABLE INJURY-CASUAL EMPLOYMENT.

An employee employed at 75 cents an hour to calcimine the walls and ceiling of place of business of manufacturer and seller of artificial limbs and orthopedic appliances was engaged in "casual employment," so that injury sustained was not compensable in the event manufacturer and seller had not elected to come within Workmen's Compensation Act, where employment was without regularity, and for limited and temporary purpose of redecorating place of business. (I. C A., sec. 43-904, subd. 3.)

APPEAL from the Industrial Accident Board.

Appellant appeals from an order of the board denying him compensation. Affirmed.

Order affirmed.

Elam &amp Burke, for Appellant.

An employment is not casual where the employer can reasonably anticipate the necessity for such employment at the time of contracting for his Industrial Accident insurance. (Dillard v. Jones, 58 Idaho 273, 72 P.2d 705; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403; Flynn v. Carson, 42 Idaho 141, 243 P. 818.)

Clarence L. Hillman, for Respondents.

None of the provisions of the workmen's compensation law apply to 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." (I. C. A., sec. 43-904, subd. 3; Kindall v McBirney et al., 52 Idaho 65, 11 P.2d 370; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403.)

GIVENS, J. Holden and Ailshie, JJ., MORGAN, J., (Concurring).

OPINION

GIVENS, J.

--The respondent, Joe Chester Artificial Limb Company, appellant's employer, is engaged in the manufacture and sale of artificial limbs and orthopedic appliances, and for such purpose rents a room approximately 26 feet wide and 40 feet long, fitted with shelves and a counter, for a place of business. Just prior to May 4, 1940, said employer engaged carpenters to change a partition in the building, and upon completion of the carpenters' work, the evening of May 4th, appellant was employed at seventy-five cents per hour to calcimine the walls and ceiling of said building. While so engaged appellant slipped and fell a distance of 12 feet from a scaffold to the floor and thus sustained a comminuted fracture of the right tibia.

The board denied appellant's claim for compensation on the ground appellant was engaged in casual employment (the only and controlling point) and his employer had not elected to come within the provisions of the workmen's compensation act. (I. C. A., sec. 43-904, subd. 3.)

The employer, as a witness for appellant, testified he was responsible for the up-keep of the interior of the building and felt it necessary in his business to keep the interior clean and inviting and had thoroughly cleaned and re-decorated it at least three times since August 11, 1936; that he has "had it cleaned and calcimined, and I had it repainted just as it became dirty and needed it"; the last time it had been calcimined was about two years ago.

The board was justified in finding and concluding the employment was casual because it was "merely incidental and occasional, without regularity and for a limited and temporary purpose and was not a regular recurring employment which was customary and to be anticipated with regularity," hence the accident was not compensable. (Orr. v. Boise Cold Storage Co., 52 Idaho 151, 155, 12 P.2d 270; Rabideau v. Cramer, 59 Idaho 154, 158, 81 P.2d 403; Perroni v. Farley, (N. J.) 182 A. 353; Fedak v. Dzialdowski, (Pa.) 172 A. 187; Quick v. E. B. Kintner & Son, (Pa.) 172 A. 189; In re Lamont, (Wyo.) 41 P.2d 497; Thompson v. Wagner, (N. J.) 135 A. 800; Pacific Employment Ins. Co. v. Department of Industrial Relations, (Cal.) 267 P. 880; Ostlie v. H. F. Dirks & Son, (Minn.) 248 N.W. 283.)

Order affirmed.

Holden and Ailshie, JJ., concur.

CONCUR BY: MORGAN

MORGAN J. (Concurring)--

This case cannot be distinguished, in principle, from Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403. In that case, and in this one, the court appears to me to have denied recovery for the claimant's injuries by means of a strict construction of the workmen's compensation law instead of ruling in favor of the claimant as a result of a liberal construction thereof, in conformity to the spirit and purpose of the law. (McNeil v Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Flynn v. Carson, 42 Idaho 141, 243 P. 818; In Re Hillhouse, 46 Idaho 730, 271 P. 459; In Re Larson, 48 Idaho 136, 279 P. 1087; Reinoehl v. Hamacher Pole etc. Co.,...