Holmen Creamery Ass'n v. Indus. Comm'n of Wis.

• Decision Date: 21 May 1918
• Citation: 167 N.W. 808,167 Wis. 470
• Parties: HOLMEN CREAMERY ASS'N ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

167 Wis. 470

167 N.W. 808

HOLMEN CREAMERY ASS'N ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 21, 1918.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Holmen Creamery Association and another against the Industrial Commission of Wisconsin and William Wallum, to review an award in favor of Wallum. From judgment vacating the award, defendants appeal. Reversed and remanded, with directions.

Action to vacate an award of the Industrial Commission, allowing compensation to the defendant Wallum for injuries sustained by him while in the employ of plaintiff Holmen Creamery Association. There is no dispute in the facts. Wallum was hired by the manager of the Creamery Association to make some repairs on the creamery consisting of mason work and plastering inside and outside of the building. He started to work about 10 o'clock in the forenoon of November 26, 1916, and was injured about 3 o'clock in the afternoon of the same day. He had previously worked for the creamery association off and on, and had built part of the building, but had never been steadily employed by it. He was always hired specially whenever he did repair work for it, and was paid by the hour or day. It was understood that when these repairs were completed his employment terminated, and that if he rendered further services it would be under a new employment. The circuit court vacated the award on the ground that the employment of Wallum was but casual within the meaning of section 2394--7 (2), Stats. 1915. The Industrial Commission and Wallum appealed.Spencer Haven, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appellants.

Roehr & Steinmetz, of Milwaukee (Julius E. Roehr, of Milwaukee, of counsel), for respondents.

VINJE, J. (after stating the facts as above).

The question raised by the appeal is, Was Wallum at the time of his injury an employé of the Holmen Creamery Association within the meaning of the Workmen's Compensation Act? Section 2394--7 of that act provides that:

“The term ‘employé’ as used in sections 2394--1 to 2394--31, inclusive, shall be construed to mean: * * * (2) Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession, or occupation of his employer.” Stats. 1915.

In 1917 the Legislature amended this section (Laws 1917, c. 624) by striking out the words “is but casual or,” so that in the future cases like the present will not arise. It is quite evident that the term “employment” used in the quoted section refers to the nature or kind of service rendered by the employé rather than to the nature of his contract of hiring. The true test, therefore, is whether the service rendered or the work done by the employé is of a casual nature. The difficulty of applying this test lies not so much in the selection of a correct definition of the adjective “casual” as in determining whether a given state of facts comes within the definition selected. Our standard dictionaries give six or seven different definitions of the word, only two of which need be considered. The first or primary meaning of the word is “happening or coming to pass without design, and without being foreseen or expected, accidental, coming by chance.” The secondary meaning is “coming without regularity or at uncertain times, occasional, incidental.” Neither of these definitions alone exactly fits the meaning of the word as used in the statute. As therein used it implies an element of chance or lack of design or...