In re Karos

• Decision Date: 02 March 1926
• Docket Number: 1339
• Citation: 243 P. 593,34 Wyo. 357
• Parties: In Re KAROS. v. OCENAS [*] KAROS
• Court: Wyoming Supreme Court

243 P. 593

34 Wyo. 357

In Re KAROS.

KAROS v. OCENAS ^[*]

No. 1339

Supreme Court of Wyoming

March 2, 1926

APPEAL from District Court, Fremont County; BRYANT S. CROMER, Judge.

Proceeding under the Workmen's Compensation Law by Frank Karos claimant, opposed by Alex Ocenas, employer. From an order of the district court granting an award, the employer appeals.

Affirmed.

J. J Spriggs for appellant.

Ocenas was not an employer of Karos within the meaning of the Compensation Act. Bossik owned the tractor and sent Karos to run it. 28 R. C. L. 764. Karos was intoxicated, which excludes him from compensation. 28 R. C. L. 791. The employment was casual and a mere, isolated transaction not coming within the Compensation Act. In re: Gaynor (Mass.) 104 N.E. 339; L. R. A. 1916 A 363. Upon reading the compensation act as a whole, it will be seen that it does not apply to the present case.

David J. Howell, Attorney General, for respondent, Karos.

House moving comes within the Compensation Act. 4318 C. S., as amended by Chap. 60, Laws 1923. No matter if but one house was moved, the law applied during the time of the moving. There was no proof showing the employment to be casual.

David J. Howell, Attorney General, for the State Treasurer.

Ocenas was not a house mover. He applied to Mr. Bossik, a farmer, to secure the use of a tractor. Bossik refused to let the tractor go unless it should be driven by Frank Karos, who was injured. Karos finally brought the tractor and hitched on to the house, and started. The tractor reared up and tipped over, breaking Karos' leg and burning him severely. He was confined to a hospital for several months as a result of this injury. Ocenas' contention is that the injured man was not in his employ. Record discloses that he was not a regular employee of either Ocenas or Bossik, when employed to move a house as a casual worker. In re Kind (Mass.) 107 N.E. 959.

KIMBALL Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is an appeal from an order of award under the Workmen's Compensation Law. The appellant, Alex Ocenas, on September 12, 1924, was engaged in moving a house at Hudson, Wyoming. The work was being done under a contract whereby Ocenas was to receive $ 150 for moving the house some six or eight blocks. It was planned to have the house pulled by two gasoline tractors, one of which was driven by Frank Karos, the injured workman. When the tractors were attached to the house and started forward the load proved to be too great, the house did not move, and the tractor driven by Karos reared and fell backward. The workman was caught beneath the tractor and injured. If he was entitled to compensation, the amount thereof as fixed by the award is not questioned.

The tractor driven by Karos had been borrowed from the owner, Bossik. It is claimed that Karos was not the employee of Ocenas but of Bossik. Ocenas testified that when he borrowed the tractor, Bossik insisted that Karos drive it; that he (Ocenas) did not employ Karos, but agreed to pay Bossik both for the use of the tractor and for Karos' services in driving it. We need not say whether this testimony, if undisputed, would have justified a finding that Karos was not the employee of Ocenas at the time of the accident. See Famous Players Lasky Corp. v. Ind. Acc. Com. (Calif.) 194 Cal. 134, 228 P. 5, and note, 34 A. L. R. 768. The testimony of Ocenas on this point was denied by both Bossik and Karos. Karos testified that he was employed by Ocenas and that he had not worked for Bossik for several months. Bossik corroborated Karos. There can be no doubt that the court was warranted in finding that Karos was the employee of Ocenas. The parties hereafter will be called employer and workman.

The employer testified that he was a plasterer and mason, and not engaged regularly in the business of moving houses. There was no evidence that he ever contracted or undertook to move any other house. The time required to move the house was not shown at the hearing, but it may be assumed that it would not have taken long--probably a day or two. It is contended that a single act of moving a house is not an occupation or business covered by the Workmen's Compensation Law.

That law from the first has classed "buildings being constructed repaired, moved or demolished" as an extra-hazardous occupation when "conducted for the purpose of business, trade or gain." Sec. 4318, Wyo. C. S. 1920. It is undisputed that the employer in this case was engaged in moving a building, an extra-hazardous occupation, and that he was doing it for the purpose of gain. It would seem, therefore, that the moving of the house was an occupation controlled by the law unless excepted because the employer was engaged in that occupation but a short time.

Section 4318, supra, as it read in the original act, provided that the act should apply only to employers by whom five or more workmen had been employed continuously for more than one month at the time of the accident. Sec. 4, c. 124, L. 1915. The legislature of 1917 made the law applicable to employers who had employed three or more workmen for one month. Sec. 1, c. 69, L. 1917. The next legislature made it applicable to employers by whom "workmen have been employed continuously for more than one month at the time of the accident." Sec. 1, c. 117, L. 1919; Sec. 4318, W. C. S. 1920. The legislature of 1921 dropped from the law all reference to the number of men employed or the time of their employment. Sec. 1, c. 138, L. 1921. It is unnecessary to comment on the significance of these changes which, after the amendment of 1921, left nothing in the law to show an intention that an employer should be excepted from its control merely because he was not engaged regularly in the hazardous occupation, or because the occupation was pursued for only a short time. We conclude, therefore, that the moving of the building was an occupation controlled by the compensation law.

The law defines a workman as "any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business." Sec. 4321, C. S. 1920. It is contended that the workman in this case falls within the exception.

Almost every Workman's Compensation Law contains some provision excepting workmen whose employment is casual, but the provisions differ materially both in phrasing and meaning. A general classification of such provisions is made in Miller v. Granite etc. Co., 66 Mont. 368, 372, 213 P. 604. Ours may have been copied from the Iowa law of 1913 which, however, has been changed by amendment. Oliphant v. Hawkinson, 192 Iowa 1259, 183 N.W. 805, 33 A. L. R 1433. The language of the exception in the Wyoming law is much like that in the English act. The courts of that country have considered it inadvisable to attempt to give a general definition of "casual" which would meet every case, or to lay down general rules for determining when the employment is "for the...