Dillard v. Jones
| Decision Date | 15 October 1937 |
| Docket Number | 6467 |
| Citation | 72 P.2d 705,58 Idaho 273 |
| Parties | SHERRILL DILLARD, Claimant, Respondent, v. H. A. JONES, Appellant |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. C. J. Taylor, Presiding Judge.
Proceeding for compensation under the Workmen's Compensation Act. Judgment for claimant. Affirmed.
Affirmed. Costs awarded to respondent.
J. H Andersen, for Appellant.
Employment of a carpenter engaged at fixed daily wage to repair a building is casual employment within the meaning of sec 42-904, I. C. A. (Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270; Flynn v. Carson, 42 Idaho 141, 243 P. 818; Lamont v. Intermountain Realty Co., 48 Wyo. 56, 41 P.2d 497; Edwards v. Industrial Acc. Com., 129 Cal.App. 447, 18 P.2d 979.)
Where findings and decree are not responsive to the case made by the complaint, the judgment will be reversed. (Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784.)
Reference to pleadings or papers is not a sufficient finding. ( Pittock v. Pittock, 15 Idaho 426, 98 P. 719; Murry v. Nixon, 10 Idaho 608, 79 P. 643; Reynolds v Board of County Commrs., 6 Idaho 787, 59 P. 730.)
Merrill & Merrill, for Respondent.
In the case at bar the employer had various occupations. He remodeled the basement of his own home and provided apartments for rent. He then purchased as a real estate operator the house on Shilling Avenue in Blackfoot and converted it into four apartments and rented them. This facilitated the sale of the property. It required one to three men working six months to do this. The workmen thus employed were not engaged in "casual employment," but were under the protection of the Workmen's Compensation Act. The following authorities support this statement: (Casual employment defined in Workmen's Compensation Law by Snyder, sec. 29; Flynn v. Carson, 42 Idaho 141, 243 P. 818; Industrial Com. v. Funk, 68 Colo. 467, 191 P. 125; Domer v. Castator, 82 Ind.App. 574, 146 N.E. 881; Miller & Lux v. Industrial Acc. Com., 32 Cal.App. 250, 162 P. 651; American Steel Foundries v. Industrial Board, 284 Ill. 99, 119 N.E. 902.)
The district court is not required to make new findings of fact in cases which have been appealed from the Industrial Accident Board. Its power in such cases is "limited to a review of questions of law." (Sec. 43-1408, I. C. A.; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)
--Appellant is a real estate broker and fire insurance agent. He purchased a building for resale having at that time a prospective customer therefor. Before title was perfected the customer withdrew his offer to purchase and in order to sell or rent the property appellant was compelled to improve its condition and remodel it. In connection with this work he employed among others, respondent on December 26th, 1935, who began work by taking out some ceiling joists and laths. On the 27th, while shingling on the roof, he slipped and slid off breaking his leg, resulting in a permanent injury. Notice and claim for compensation were given which were resisted by appellant on the ground the employment was casual and not in his trade or occupation carried on for the sake of pecuniary gain. The Board awarded compensation which the district court on appeal sustained which is the judgment for review here, on the same contentions.
The evidence is undisputed that prior to the time of this accident respondent had worked about a month for appellant in the remodeling of appellant's own home and though respondent at the time of the instant accident was only in his second day of employment on the particular house, while he was in the hospital appellant told respondent "to hurry up and get well and he would put me back to work again as soon as I was able," and the remodeling of the house continued for about six months although respondent was unable to return to work.
Appellant contends these facts show the employment was casual and that it was not appellant's business to build or remodel houses. The facts in the cases cited by appellant in support of his position while somewhat similar do not under statutes similar to ours, involve the precise situation here, namely where a real estate broker when he had remodeling to do, of property which he occupied himself or had for resale or rent, did it himself on force account, and where there was this additional fact that appellant herein himself testified with regard to this feature of the case as follows:
An analysis of the cases cited by appellant discloses the following:
In Lamont v. Intermountain Realty Co., 48 Wyo. 56, 41 P.2d 497, it was conceded the employment was casual. In Lauzier v. Industrial Acc. Com., 43 Cal.App. 725, 185 P. 870, Ford v. Industrial Acc. Com., 53 Cal.App. 542, 200 P. 667, Pacific Employers Ins. Co. v. Department of Industrial Relations, 91 Cal.App. 577, 267 P. 880, and Edwards v. Industrial Acc. Com., 129 Cal.App. 447, 18 P.2d 979, the statute defines employment for less than 10 days as casual.
In Carsten v. Department of Labor & Industries, 172 Wash. 51, 19 P.2d 133, wherein a divided court held repair of a chicken house by the owner casual, there was no testimony as herein that the work was done in the employer's business.
Edwards v. Department of Labor & Industries, 146 Wash. 266, 262 P. 973, was based on a statute allowing compensation only in hazardous occupations, thus not applicable as was Thurston County Chapter, etc., v. Department of Labor & Industries, 166 Wash. 488, 7 P.2d 577, holding the Red Cross was not extrahazardous employment under that statute and in H. Roy Berry Co. v. Industrial Com., 318 Ill. 312, 149 N.E. 278, it was held that a company engaged in subdividing and selling real estate which tore down a barn on property to be subdivided did not come within the act because subdividing was not extrahazardous under the statute, and the demolishing of the building was "merely incidental, casual, and temporary in character."
In Lackey v. Industrial Com., 80 Colo. 112, 249 P. 662, the court held a farmer who decided to go into the filling station business in building the station was not engaged in his usual trade or business.
Miller v. Granite County Power Co., 66 Mont. 368, 213 P. 604, held that one employed to dig a well by the watchman of a hydroelectric power plant which generated and disposed of electric power was not engaged in the company's business and was therefore casual employment.
Coleman v. Bartholomew, 175 A.D. 122, 161 N.Y.S. 560, was decided under a statute requiring the work done to be hazardous, and it held that a "farm laborer" making repairs on a dairy barn, which repairs were not for pecuniary gain, was not engaged in "hazardous employment."
Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943, sustains our view that the work was not casual, but held where one whose business was selling junk and dealing in second-hand automobiles owned two or three houses which he rented, that the labor or services of repairing or remodeling them was not "regular business" or occupation within the meaning of the Workmen's Compensation Law.
In Uphoff v. Industrial Board of Illinois, 271 Ill. 312, 111 N.E. 128, Ann. Cas. 1917D, 1, L. R. A. 1916E, 329, it was held that the building of a corncrib for a farmer by a carpenter was not hazardous and since the farmer was not in the business of building the statute was inapplicable. The statute differs from ours.
The case of Johnson v. Choate, 284 Ill. 214, 119 N.E. 972, cites Uphoff v. Industrial Board of Illinois, supra, but held that where one maintained a large building let out and used for income and the maintaining of the building was the business or occupation of the person, and the statute declared such occupation or business to be extrahazardous then the employer came within the act. This case was not brought under the act but was trespass on the case for personal injury.
In Millard v. Townsend, 204 A.D. 132, 197 N.Y.S. 702, a housewife, not a hazardous business, leased her farm and employed a carpenter to tear down a barn thereon, and it was...
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