Kaplan v. Gaskill
| Decision Date | 19 April 1922 |
| Docket Number | 22503 |
| Citation | 187 N.W. 943,108 Neb. 455 |
| Parties | JAKE KAPLAN, APPELLANT, v. WILLIAM M. GASKILL, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CARROLL O STAUFFER, JUDGE. Reversed and dismissed.
Judgment reversed and case dismissed.
J. E Von Dorn, for appellant.
R. B Hasselquist, contra.
Heard before DEAN, ROSE, DAY and FLANSBURG, JJ.
This was an action under the workmen's compensation law. An award was granted to the employee, Gaskill, both at the hearing before the compensation commissioner, and also in the proceeding, later instituted, in the district court. From the decree in the district court, the employer, Kaplan, appeals.
The questions of law presented are whether or not the employment was "casual," and whether or not it was an employment in the usual course of "the trade, business, profession or occupation" of the employer.
The evidence in behalf of the employee is to the effect that Kaplan, the employer, was engaged in the business of buying and selling junk and dealing in second-hand automobiles, and that he owned two or three houses and a small store building. His wife also owned one residence property. All of these properties, except one house, in which Kaplan and his wife lived, were occupied by tenants. In the middle of April, 1921, Mr. Kaplan employed Gaskill to work for him. He told Gaskill that he had some repair work and remodeling to do on the store building, and that he intended, later, to build or repair a fence, build some additional garages, and, should he be able to purchase a certain lot, expected to erect another store building. It was contemplated that the work which they were to immediately enter upon on the store building, being remodeling and repair work, would last ten days or two weeks. Mr. Gaskill, who was otherwise employed, in the early mornings, as a janitor, the testimony in his behalf shows, agreed to work for Kaplan at 75 cents an hour, seven and one-half hours a day and five days a week; Mr. Kaplan not desiring work done for him on Saturday, as that was the day which he observed as the Sabbath. Gaskill began work immediately, on April 19, and the work on the store building was practically completed on the 2d of May. On that day Kaplan asked that Gaskill should return the next day and assist in moving an ice box, saying that he wished Gaskill to bring some crowbars, and that he would call for him the next morning with his truck. The next morning they met, as arranged, and drove to the store building. The work of moving the refrigerator and of repairing damage to the floor, which occurred as a result of that work, lasted until noon. During that work, a splinter entered Gaskill's thumb. An infection later followed and caused a permanent injury.
The above testimony is not without conflict, but, since the evidence is sufficient to support such a state of facts, the judgment of the district court is decisive of those issues in favor of the employee, so far as the appeal in this case is concerned, for the judgment of the trial court has the same effect and binding force as the verdict of a jury.
The two legal defenses, that the employee was engaged in casual employment and was acting outside of the usual course of the business of his employer, are, under the statute as it stood prior to the 1921 amendment, defenses which are distinct and independent of one another, and must be considered separately. Petrow & Giannou v. Shewan, p. 466, post.
It does not appear that the employment was casual. That question is to be determined largely from the contract entered into between the parties. Western Union Telegraph Co. v. Hickman, 248 F. 899; Oliphant v. Hawkinson, 192 Iowa 1259, 183 N.W. 805. By that contract it was contemplated that the employee was to be employed continuously at a certain rate per hour, and for certain hours and days of the week, and for a period which might last practically the entire summer. The work was to be of a sufficient duration to make it entirely practicable for the employer to take out insurance to protect both himself and his employee, or to serve and post notices of an election, on his part, to be governed by part I of the workmen's compensation act. One of the reasons that the casual employee was excepted from the operation of the compensation law was because of the impracticability of requiring the employer to take out insurance, or to take the necessary steps to reject the act in each individual instance of such employment. Where it is contemplated by the parties, at the time of entering into their agreement, that the employment will last ten days or two weeks, and may and probably will continue several months, it certainly cannot be said to be a casual employment. In California the legislature has seen fit to declare that employment which continues for more than ten days shall not be considered casual. Ford v. Industrial Accident Commission, 200 P. 667.
The decisions of this court and of other courts, under circumstances where the employment is one which is contemplated to continue, as it does in this case, have held such employments to be regular, and not casual. Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885; Thompson v. Twiss, 90 Conn. 444, 97 A. 328; Scott v. Payne Bros., 85 N.J.L. 446, 89
A. 927; Schaeffer v. De Grottola, 85 N.J.L. 444, 89 A. 921.
The next question presented is whether or not the employment was in the usual course of the regular trade, business, profession, occupation or vocation of such employer. The statute provides that the act "shall apply * * * to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer" (Laws 1917, ch. 85, sec. 1), and further provides that the act "shall not be construed to include any person whose employment * * * is not in the usual course of the trade, business, profession or occupation of his employer" (Laws 1917, ch. 85, sec. 4, subd. 3).
It is argued that the act must be given a liberal construction, and to this we readily accede. But, as said in Ray v. School District of Lincoln, 105 Neb. 456, 461, 181 N.W. 140: "We have repeatedly given the act, as to the classes of workers brought within it, a liberal construction, but the rule, allowing a liberal construction of a statute, does not warrant us in overriding its terms in order to widen the remedy or bring about objects or results not within its expressed intent."
The act by its terms is confined to employees in the various kinds of business occupations, whenever such employees are engaged in performing the usual services pertaining to that particular business or vocation.
The fact that the employer, in this instance, was engaged in the business of buying and selling junk and in dealing in second-hand automobiles has no controlling influence upon the question of whether or not he was engaged in the regular business or vocation of renting houses. The act does not contemplate that a person can be engaged in only one regular business. He may be engaged in several. The question, then, of whether or not he was engaged in a regular business occupation in the holding and handling of the properties in question, and whether or not the employee was engaged in the usual course of the duties which were within the scope of that business, must be determined entirely aside from the question of whether or not the employer was engaged in any other kind or nature of business as well as aside from the question of whether the employment was casual. The compensation act was not intended to impose a charge upon the individual employer, but upon the industry or business or vocation in which he was engaged, on the theory that the industry could bear the loss resulting from personal injuries to its employees, and that the burden could be passed on to the patrons of that industry by charging up such losses to operating expense. The law was not intended to cover all labor, but, as is manifest from its express terms, only labor performed in the usual course of some regular business calling. In determining what was meant by the terms, regular trade, business, profession or vocation, this underlying principle of the law should be kept in mind. The terms, trade, business, profession, vocation or occupation, all refer to business occupations, of one nature or another. It is not everything in which a person may happen to be employed, even though the undertaking may be carried on for profit, that may be said to be a business, vocation or occupation, within the meaning of the terms as used in the statute. Those terms imply a continuous or habitual course of dealing in certain transactions and a dealing to a sufficient extent as to so employ work and labor and service in the conducting of it that it can be said to be a regular occupation or business. As to what constitutes a regular business in any given case must of course depend upon the particular facts and circumstances in that case. No arbitrary or definite rule can be laid down...
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