Orr v. Boise Cold Storage Co.

• Decision Date: 27 May 1932
• Docket Number: 5851
• Citation: 52 Idaho 151,12 P.2d 270
• Parties: LEVINA M. ORR and C. J. SCHOOLER, Guardians of the Estate of ALBERT HOWARD ORR and MARION ELLA ORR, Respondents, v. BOISE COLD STORAGE COMPANY, a Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

12 P.2d 270

52 Idaho 151

LEVINA M. ORR and C. J. SCHOOLER, Guardians of the Estate of ALBERT HOWARD ORR and MARION ELLA ORR, Respondents, v. BOISE COLD STORAGE COMPANY, a Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5851

Supreme Court of Idaho

May 27, 1932

WORKMEN'S COMPENSATION ACT-COMPENSABLE INJURY-CASUAL EMPLOYMENT.

Employment of carpenter engaged at fixed daily wage to repair displaced wall of ice storage plant held "casual employment" within Compensation Act; hence death resulting from injuries sustained therein was not compensable (C. S., sec. 6216, as amended).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Proceeding under Workmen's Compensation Law. Appeal from judgment of the District Court modifying and affirming order of Industrial Accident Board awarding compensation. Reversed.

Judgment reversed. No costs awarded. Petition for rehearing denied.

J. R Smead, for Appellants.

Employment which is not regular, which is incidental or occasional, and which is for a limited and temporary purpose, is casual employment within the meaning of the Workmen's Compensation Law. (Flynn v. Carson, 42 Idaho 141 243 P. 818, 820; Western Union Telegraph Co. v Hickman, 248 F. 899, 161 C. C. A. 17; Chamberlain v. Central etc. Ry. Co., 100 Vt. 284, 137 A. 326; Consumers' etc. Co. v. Industrial Com., 289 Ill. 423, 124 N.E. 608; Herbig v. Walton Auto Co., 191 Iowa 394, 182 N.W. 204, 206; Bridger v. Lincoln Feed & Fuel co., 105 Neb. 22, 179 N.W. 1020.)

Employment is casual where it is not only for a limited and temporary purpose, but occurs as the result of an accident which disrupts the usual course of the employer's business. ( Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1021; Texas Refining Co. v. Alexander, (Tex.) 202 S.W. 131.)

The repair of damages caused by an accident to the employer's building is not in the usual course of his business. ( Miller v. Granite County Power Co., 66 Mont. 368, 213 P. 604, and cases there collected and reviewed.)

Oppenheim & Lampert and C. J. Schooler, for Respondents.

The exclusion from the Idaho Workmen's Compensation Law is of "Casual employment," not of the casual "employee"; not those "persons" but those "employments" are excluded which are "casual." (C. S., sec. 6216; Flynn v. Carson, 42 Idaho 141, 243 P. 818, 820; Holmen Creamery Assn. v. Industrial Com., 167 Wis. 470, 167 N.W. 808; F. C. Gross & Bros. Co. v. Industrial Com., 167 Wis. 612, 167 N.W. 809; Hoffer Bros. v. Smith, 148 Va. 220, 60 A. L. R. 1201, 138 S.E. 474.)

Employment of a carpenter to make repairs or additions to an industrial plant is not casual employment. (Holmen Creamery Assn. v. Industrial Com., supra; F. C. Gross & Bros. Co. v. Industrial Com., supra; Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 136 A. 548.)

BUDGE, J. Givens, Varian and Leeper, JJ., concur. Sutton, D. J., dissents.

OPINION

BUDGE, J.

The Boise Cold Storage Company is a corporation engaged in the manufacture, storage and sale of ice, and in maintaining a commercial cold storage warehouse. Shortly prior to September 3, 1919, in a room in its main ice storage plant where artificial ice was stored and stacked in piles, one of the piles slipped against the outside wall of the building and as a result caused the wall to bulge outwards at the top and to separate from the ceiling, leaving an opening. B. Frank Orr, a carpenter by occupation, and a helper were employed at a fixed daily wage by the Boise Cold Storage Company to put the wall back into place. This was done by placing stringers on the outside of the building, running truss rods through the room, and by the use of turn-buckles on the truss rods drawing the wall back into place. In the late afternoon of September 3, 1919, the helper was descending from a scaffold, between 20 and 25 feet high, erected inside the building to facilitate the work. In doing so, a carpenter's claw-hammer, somewhat heavier than the ordinary hammer, which he carried in a loop for that purpose in the overalls he was wearing, caught on a projection, became dislodged and fell, striking Orr, who was standing directly below, on the head and knocking him down. Orr returned to work the following morning and continued to work until the job was completed (the job requiring approximately ten days altogether), and thereafter worked intermittently on other jobs until about July 18, 1920, after which time he was unable to work and became and remained bedfast until his death on October 22, 1920. It is believed that the record sufficiently shows that the injury received by Orr on September 3, 1919, was the cause of his death. Other facts are disclosed by the record which are not deemed necessary to be recited if the conclusion reached on the one question here involved is correct.

Orr left surviving him his wife and three children, then minors. No claim for compensation was made until April 17, 1931, when claimants, both then minors, by respondents as their guardians, duly appointed April 15, 1931, filed a claim for compensation. The third child prior to that date had attained her majority. Appellants filed their answer containing, among others, the following defense: That Orr's employment was casual and therefore exempted from the Workmen's Compensation Act under the provisions of C. S., sec. 6216.

After hearing, the Industrial Accident Board made its findings of fact, conclusions of law, and entered its order denying compensation for the first 400 weeks immediately following Orr's death but awarding compensation thereafter up to the majority of each of the claimants. From such order appellants and respondents appealed to the district court. The district court, after hearing, made and filed its findings of fact (adopting those of the Industrial Accident Board), conclusions of law and entered judgment modifying the order of the Industrial Accident Board to provide for payment of compensation...