Nelson v. Stukey

• Decision Date: 04 March 1931
• Docket Number: 6639.
• Citation: 300 P. 287,89 Mont. 277
• Parties: NELSON v. STUKEY.
• Court: Montana Supreme Court

300 P. 287

89 Mont. 277

NELSON v. STUKEY.

No. 6639.

Supreme Court of Montana

March 4, 1931

Rehearing Denied April 29, 1931.

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

01,300 P. Action by J. E. Nelson against Peter Stukey. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Freeman Thelen & Freeman, of Great Falls, for appellant.

Murch & Wuerthner and Clift & Glover, all of Great Falls, for respondent.

ANGSTMAN J.

Plaintiff brought this action to recover damages for personal injuries. Complete analysis of the pleadings is unnecessary. In general, the complaint alleges that plaintiff was employed by defendant as foreman to supervise the work of constructing an addition to an apartment house owned and operated by defendant; that defendant failed to elect to come under the Workmen's Compensation Act with respect to plaintiff that on August 25, 1927, the plaintiff sustained injuries as a result of falling through a platform or passageway constructed on the roof of the addition to the apartment house and astraddle one of the joists. The action is based upon the negligence of the defendant, his servants and agents, in the manner of constructing the passageway and in failing to warn plaintiff of its dangerous condition.

The answer alleges that plaintiff was employed by defendant in the capacity of an independent contractor; that plaintiff had sustained an injury on August 18, and that on August 25 he was able to move about only with the use of a cane; and that the injury of August 25 was brought about by reason of his own negligence in attempting to work when not physically fit. The answer affirmatively pleads contributory negligence of plaintiff, assumption of the risk by plaintiff, and that his injuries arose from the negligence of his fellow servants. The reply may be treated as a general denial.

The cause was tried to the court and a jury. At the close of plaintiff's case defendant moved for a judgment of nonsuit, which was sustained. Judgment was entered for defendant, from which plaintiff appealed.

1. The principal question presented is whether plaintiff's employment by defendant was of a casual nature. The importance of this question is made apparent by reference to our statutes.

Section 2836, Revised Codes 1921, provides: "In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense: (1) That the employee was negligent, unless such negligence was wilful; (2) That the injury was caused by the negligence of a fellow employee; (3) That the employee had assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances." And section 2837, as amended by chapter 121, § 1, Laws of 1925 provides: "The provisions of Section 2836 shall not apply to actions to recover damages for personal injuries sustained by *** persons whose employment is of a casual nature."

Hence, it will be seen from these sections of the statute that if the employment of plaintiff was of a casual nature, the defenses enumerated in section 2836 are available to defendant, otherwise not. It is the contention of defendant that the evidence shows the employment of plaintiff was of a casual nature, and that plaintiff's own evidence establishes the defenses enumerated in section 2836, and therefore that the court was justified in taking the case from the jury on motion for nonsuit.

The evidence bearing upon the issue of whether the employment was of a casual nature may be summarized as follows: Defendant, by profession, is a dentist, having maintained an office in Great Falls since 1911. He resides in the Stukey Apartments. The original building contains fifteen apartments, the addition twenty-three. He rents the apartments and collects the rent. He does the janitor work and firing for the apartments, with the assistance of a maid. As a witness for plaintiff, defendant testified that his usual trade, business, profession, and occupation is that of dental surgery and that he has never followed the business of constructing buildings for a livelihood. He characterized the apartment business as a side issue.

"'Casual employment' means employment not in the usual course of trade, business, profession, or occupation of the employer." Section 2888, Rev. Codes 1921. In Industrial Accident Board v. Brown Bros. Lumber Co., 88 Mont. 375, 292 P. 902, 903, we took occasion to point out that section 2863, as amended by chapter 121, § 3, Laws of 1925, in defining "employee" and "workman" excludes "any person whose employment is both casual and not in the courses of the trade, business, profession or occupation of his employer." But since the contention here is that plaintiff's employment was casual only because "not in the usual course of trade, business, profession or occupation" of the defendant, further comment upon section 2863, as amended, need not be made.

The line of demarcation between what is and what is not employment in the usual course of trade, business, profession, or occupation of the employer is vague and shadowy. Each case must, of necessity, depend upon its own facts and circumstances. And an employer may, and often does, have more than one business, trade, occupation, or profession.

The following cases are illustrative: Anderson v. McVannell, 202 Mich. 29, 167 N.W. 860; Shafer v. Parke, Davis & Co., 192 Mich. 577, 159 N.W. 304; State ex rel. Marshall v. Roesch, 108 Or. 368, 216 P. 749; State v. Business Property Security Co., 87 Wash. 627, 152 P. 334; Davis v. Industrial Commission, 297 Ill. 29, 130 N.E. 333, 15 A. L. R. 732.

The word "business" has been said to mean the habitual or regular occupation that a person is engaged in with a view to earning a livelihood or gain. Marsh v. Groner, 258 Pa. 473, 102 A. 127, L. R. A. 1918F, 213. To the same general effect are State ex rel. Lennon v. District Court, 138 Minn. 103, 164 N.W. 366; Abel v. State, 90 Ala. 631, 8 So. 760.

Here it is clear that defendant operated the original apartment for the purpose of gain. The addition, which was to cost approximately $50,000, was being built for use for the same purpose. The question is: Was the building of the addition in the usual course of business or occupation of defendant?

Many cases are cited in the briefs by plaintiff and defendant from other jurisdictions showing what other courts have held under statutes very similar to ours. Of those cited, only a limited few present facts such as we have before us.

In State ex rel. Lundgren v. District Court, 141 Minn. 83, 169 N.W. 488, 489, the employer was engaged in the lumber and building material trade and decided to enlarge its business by adding coal and other fuel. It employed plaintiff to construct a shed as a storeroom for the coal. The court held that plaintiff was employed in the usual course of the employer's business, saying: "The addition was to become permanently a part of defendant's business, and the shed was a permanent structure, with a solid concrete foundation and floor. While the defendant was not a building contractor, nor engaged in specific work of that kind, the construction of the shed in question was in furtherance of its established business, a necessary part thereof, and we discover no sufficient reason for holding that it was outside of and beyond what is customary and usual in a situation of the kind. That should be the test in construing the statute. The construction of the shed should therefore be held within the usual course of defendant's business, within the meaning and contemplation of the statute. We so hold."

In the case of Lackey v. Industrial Commission, 80 Colo. 112, 249 P. 662, 663, it was said: "We do not think that the erection of a building can be said to be within the usual course of a business to be carried on in that building, unless, perhaps, such business be the business of building and the structure be erected in the course of that business. Suppose a building contractor resolves to go into the hotel business and for that purpose erects the hotel himself. The erection of that hotel may be in the usual course of his business as building contractor, but how can it be said that it is in the usual course of his business as a hotel keeper? He is an innkeeper when he opens his house for guests, not before. He is a filling station keeper when he opens his place to fill, not before. Illustrations and analogies might be multiplied without end. We must say that neither the preparation for the erection of a building for the filling station nor the erection of it was within the usual course of business of farming or keeping a filling station." But in that case the court, in distinguishing the case before it from that of State ex rel. Lundgren v. District Court, supra, pointed out that the Lundgren Case had to do with work in furtherance of an established business, while the case before the court involved the construction of a building to be used by the builder in a business new to him.

In the case before us the defendant was already engaged in the apartment business. The building of the addition was simply to enlarge that business. It was, we think, constructed in the furtherance of the business in which defendant was engaged, and are of opinion that plaintiff's employment was in the usual course of that business within the meaning of our Workmen's Compensation Act.

Without giving our approval to all of the following cases, in principle they support the conclusion we have reached, and some go much further: Davis v. Ind. Commission, ...