Flynn v. Carson

• Decision Date: 02 February 1926
• Citation: 243 P. 818,42 Idaho 141
• Court: Idaho Supreme Court
• Parties: DOROTHY FLYNN, Respondent, v. HAROLD CARSON and PIERCE DUNNE, Employers, and HARTFORD ACCIDENT & INDEMNITY COMPANY, Surety, Appellants

243 P. 818

42 Idaho 141

DOROTHY FLYNN, Respondent, v. HAROLD CARSON and PIERCE DUNNE, Employers, and HARTFORD ACCIDENT & INDEMNITY COMPANY, Surety, Appellants

Supreme Court of Idaho

February 2, 1926

WORKMEN'S COMPENSATION LAW-OBJECT AND INTENT OF ACT-CONSTRUCTION OF ACT-CASUAL EMPLOYMENT-MEASURE OF COMPENSATION FOR INJURY-"AVERAGE WEEKLY WAGES"-INSUFFICIENT EVIDENCE-UNSUPPORTED FINDING OF INDUSTRIAL ACCIDENT BOARD-MOTION TO SUBMIT FURTHER TESTIMONY-DISCRETION OF BOARD-REMAND TO ASCERTAIN AVERAGE WEEKLY WAGES.

1. The words "casual employment," as used in C. S., sec 6216, enumerating classes of employment which are exempted from the operation of the Workmen's Compensation Act, do not exclude the person but exclude the employment.

2. An employment which regularly recurs at periodic intervals which is directly connected with the employer's business is conducted under the express direction of the employer and subjects the employee to the hazards of the employer's business, is not a casual employment within the meaning of the Workmen's Compensation Act.

3. In construing the Workmen's Compensation Act, the cardinal rule is to ascertain the intention of the legislature as it is expressed in the words of the statute, and for this purpose the act must be considered as a whole.

4. The object of the Workmen's Compensation Act is to compensate for loss of capacity to earn, measured by what a workman of that class and grade could earn in the employment in which he was, under the conditions prevailing therein before and up to the time of the accident.

5. The reasonable intention of the Workmen's Compensation Act as regards the amount of compensation to be arrived at, is directly indicated by the provisions of C. S., sec. 6237, as being the average weekly wages computed in such manner as best calculated to give the average weekly wages of the workman, based on the wages paid in the industry for the kind of service he was rendering.

6. The provision of C. S., sec. 6228, that if, at the time of the injury, the employee received "wages of less than $6 per week, then the compensation shall not exceed the full amount of such wages," contemplates weekly average wages in an industry wherein those wages, paid on a weekly basis, do not exceed $6, and does not refer to an employee working only on part time.

7. Where an employee of an autobus line is regularly engaged as driver of a bus for a single hour on Saturday nights only, at which time extra drivers are required, the measure of compensation for death during such employment is the average weekly wage for constant employment of the same grade, computed under the provisions of C. S., sec. 6237, and not the amount received as wages by such employee during the single hour per week of his actual employment.

8. The denial by the Industrial Accident Board of a motion to submit further testimony will not be deemed error where the record shows no abuse of discretion, and it appears that the motion and affidavits in connection therewith were fully considered by the board.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Judgment affirming award of Industrial Accident Board in favor of claimant, from which defendants appeal. Judgment of district court reversed, and cause remanded for further proceedings.

Reversed and remanded with directions. No costs allowed. Petition for rehearing denied.

Carlton Fox and Randall & Danskin, for Appellants.

Neither the statute nor the decision of this court thereon allows the Industrial Accident Board to refuse to consider either a proper application to adduce further testimony or affidavits in support thereof. (C. S., sec. 6286; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356.)

Only proof of the wages earned in the same grade of work in which the workman is engaged at the time of his injury is competent, and the wages at the time of his injury, which resulted in death, were less than $ 6 per week; the wages then received are the only ones which may be taken into consideration. (C. S., secs. 6223, 6228 and 6237.)

In no event is the evidence sufficient to show either what his or anyone else's average weekly wages were, or what other persons received in the same grade of work in the same class of employment in the same district. (C. S., sec. 6237; In re Gorski, 227 Mass. 456, 116 N.E. 811.)

The Idaho Workmen's Compensation Act excepts casual employment from its operation, just the same as it excepts farm labor, outworkers, members of the employer's family living in his home, and others, even though engaged in the regular course of the employer's trade or occupation. (C. S., secs. 6213, 6216, 6217, 6221.)

The word "casual," as used in the act, means "occurring at irregular intervals, occasional," and refers to the character of the employment and not to the nature of the work performed. (Senter v. Tarbert, Third Ann. Report of Industrial Accident Board of Idaho, p. 167; Kowallis v. State Insurance Manager, Idem, p. 171; Webster's New Internatl. Dictionary; Standard Dictionary (1924); In re Gaynor, 217 Mass. 86, 104 N.E. 339, L. R. A. 1916A, 363; In re Cheevers, 219 Mass. 244, 106 N.E. 861; Aurora Brewing Co. v. Industrial Board of Illinois, 277 Ill. 142, 115 N.E. 207; Chas. A. Smith & Co. v. Industrial Commission of Illinois, 299 Ill. 377, 132 N.E. 470; Diamond Livery v. Industrial Com. , 289 Ill. 591, 124 N.E. 609; Consumers' Mut. Oil Producing Co. v. Industrial Com., 289 Ill. 423, 124 N.E. 608; Chicago Great Western R. R. v. Industrial Com., 284 Ill. 573, 120 N.E. 508; Bridger v. Lincoln Feed & Fuel Co., 105 Neb. 222, 179 N.W. 1020; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031; Blood v. Industrial Acc. Com., 30 Cal.App. 274, 157 P. 1140, 1141; Thompson v. Twiss, 90 Conn. 444, 97 A. 328, L. R. A. 1916E, 506; Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557; Herbig v. Walton Auto Co., 191 Iowa 394, 182 N.W. 204.)

One of the reasons assigned why the legislature excepted casual employment from the operation of the act is that it is impractical to take such employments into consideration in covering compensation with insurance. (Herbig v. Walton Auto Co., supra; Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943.)

The employment of Flynn was not periodically recurrent. The finding of Commissioner Worstell to this effect was overruled by the whole board on review, and such action is binding on the courts. (In re Septimo, 219 Mass. 430, 107 N.E. 63.)

James A. Wayne and Walter H. Hanson, for Respondent.

The ruling of the Industrial Accident Board denying appellant's motion to hear further evidence was proper, for the reason that such applications must be accompanied by showing of diligence, while the present application failed to show any diligence whatever. (Tibbet v. Sue, 125 Cal. 544, 58 P. 160.)

The application was one the granting or denial of which was discretionary with the board, and their decision upon a matter calling for the exercise of their discretionary powers is only subject to review where the board has abused its discretion. (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356.)

The average weekly wages of a deceased employee need not be proved with absolute certainty by his dependents; it is sufficient if such wages be proved with reasonable probability. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Lumberman's Reciprocal Assn. v. Warner (Tex. Civ. App.), 234 S.W. 545, 245 S.W. 664.)

An employment which necessarily occurs at periodic intervals, which is directly connected with the employer's business, is conducted under the express direction of the employer, and which subjects the employee to the hazards of the employer's business, is not a casual employment within the meaning of the Idaho Workmen's Compensation Act. (Terry v. Utah-Idaho S. C., 2 Idaho I. A. B., p. 131; 6 Cyc. 701; Lewis v. Lofley, 92 Ga. 804, 19 S.E. 57; 11 C. J. 28; 1st Series Words & Phrases, vol. 2; Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 109 A. 224; Roe v. Bonham, 99 N.J.L. 290, 123 A. 376; McCall v. Bell T. Co., 79 Pa. S.Ct. 505; McDonald v. Great Atlantic & P. Tea Co., 95 Conn. 160, 111 A. 65; Smith v. Heine Safety Boiler Co., 119 Me. 552, 112 A. 516; Mitchell's Case, 121 Me. 455, 118 A. 287; American Steel Foundries v. Industrial Board, 284 Ill. 99, 119 N.E. 902; Cinofsky v. Industrial Com., 290 Ill. 521, 125 N.E. 286; Holeman Creamery Assn. v. Industrial Com., 167 Wis. 470, 167 N.W. 808; Jordan v. Weinman, 167 Wis. 474, 167 N.W. 810; State v. District Court, 141 Minn. 83, 169 N.W. 488; Nebraska National Guard v. Morgan, 112 Neb. 432, 199 N.W. 557; Nosky v. Farmers' Union, 109 Neb. 489, 191 N.W. 846; Kaplin v. Gaskill, 108 Neb. 455, 187 N.W. 943; Industrial Com. v. Funk, 68 Colo. 467, 191 P. 125; Utah Copper Co. v. Industrial Com., 57 Utah 118, 13 A. L. R. 1367, 193 P. 24; Millard v. Industrial Com., 62 Utah 46, 217 P. 974; Eddington v. Northwestern B. T. Co. (Iowa), 202 N.W. 374; Roman Catholic Archbishop v. Industrial Com., 194 Cal. 660, 230 P. 1.)

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

This is an appeal from a judgment of the district court of Shoshone county affirming an award made by the Industrial Accident Board in favor of plaintiff, on review of findings and award made by the board under the Workmen's Compensation Act. The appellants Carson and Dunne, as copartners, operated an autobus line between Mullan and Wallace, and the appellant Hartford Accident & Indemnity Company was the insurer of these employers. The deceased left a surviving widow, Dorothy Flynn, and there was born to her a posthumous daughter. Allowance was made upon a total dependency...