Pope v. Safeway Stores, Inc.

Decision Date29 May 1939
Docket Number2121
Citation91 P.2d 58,54 Wyo. 266
PartiesPOPE v. SAFEWAY STORES, INC
CourtWyoming Supreme Court

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Proceeding under the Workmen's Compensation Law by Theron M. Pope employee, opposed by Safeway Stores, Incorporated, a Nevada corporation, employer. From a judgment awarding compensation in favor of the employee, the employer appeals.

Affirmed.

For the appellant there were briefs and oral argument by Bard Ferrall of Cheyenne, Wyoming.

Claimant's employment was casual and not for employer's business or trade. For that reason he is not entitled to compensation. Lamont v. Realty Co., 48 Wyo. 56. Nonpayment to the fund by employer does not prevent an award to the workman if he is entitled to it under the law. Fox Park Timber Co v. Baker (Wyo.) 84 P.2d 736. The employment must be extra-hazardous to require payments into the fund. Art. X Sec. 4, Constitution. An employer does not make payments upon his entire pay roll. Defendant does not carry on the business of building work. The Lamont case is directly in point. See also Rabideau v. Cramer (Ida.) 81 P.2d 403; Williams v. Baptist Church (Pa.) 186 A. 168; Gaines v. Traders and General Ins. Co. (Tex.) 99 S.W.2d 984; Caldwell v. George Sproull Co., Inc. (La.) 164 So. 651; Quick v. E. B. Kintner & Son (Pa.) 172 A. 189; Dancy v. Abraham Bros. Packing Co. (Tenn.) 102 S.W.2d 526.

For the respondent there was a brief by Wm. O. Wilson and James O. Wilson of Cheyenne, and oral argument by Wm. O. Wilson.

The work in which claimant was engaged at the time of the accident was under all or some of the designations specified in Secs. 124-106-107, R. S., as extrahazardous, according to the great weight of authority where similar statutes have been involved. Wright v. May (Mich.) 118 N.W. 964; Shrout v. Lewis (Kansas) 77 P. 973; Fehr Const. Co. v. Postl (Ill.) 124 N.E. 315; Hammond Lumber Co. v. Gordon (Calif.) 258 P. 612. The word "improve" is one of the charter powers of the Safeway Stores, Inc. Stevens v. Port Huron (Mich.) 113 N.W. 291. The evidence in this case clearly established that claimant's employment was not casual and was for the purpose of the employer's trade and business. This court has recognized that casual employment has not been defined uniformly and has held that in general it may be said to mean incidental, occasional and not regular employment. Lamont v. Realty Company, 48 Wyo. 56. In another case this court held that where all the peculiar facts were present showing incidental employment, it was held to be casual. Karos v. Ocenas, 34 Wyo. 357. The word casual applies to the employment, not to the employer. Dillard v. Jones, 72 P.2d 705; Kress v. Commission (Ariz.) 299 P. 1034. This court has held that in general the term casual employment means not regular employment. Lamont v. Realty Company, supra. The exception appearing in the Wyoming law is much like that in the English act. The fact that no two statutes are the same with reference to casual employment, perhaps accounts for the apparent confusion in the decisions. There are many cases supporting the views stated by this court in Karos v. Ocenas, supra. The character of the work in which Pope was engaged was the regular and customary preparation of store rooms, followed by the Safeway Stores in each case, in preparing store rooms for the conduct of its business; therefore the employment was in the regular course of its business. Kress Co. v. Industrial Commission (Ariz.) 299 P. 1034. Casual employment which is also for the purpose of employer's trade or business is not within the exception. Blood v. Ind. Comm. (Calif.) 157 P. 1140; Western Union v. Hickman, 248 F. 899. Claimant's work was not casual, but was for the purpose of the business or trade of the employer, Safeway Stores, Inc. Repairs on a window which employee was making as a carpenter at time of injury were in usual course of trade, occupation or business of employer. Kress and Co. v. Ind. Comm., supra. See also Globe Indemnity Co. v. Indus. Comm. (Calif.) 187 P. 452; Flynn v. Carson (Ida.) 243 P. 818. The Iowa statute is like that of Wyoming. An extra employee assisting in repairing telephone lines was held not to be casual. Eddington v. Bell Co. (Ia.) 202 N.W. 374. The same ruling is followed in Nebraska. Sherlock v. Drug Co. (Nebr.) 201 N.W. 645. Casual employment refers to the nature of the employment and not to the length thereof. Parks v. Carmell Co. (Tenn.) 79 S.W.2d 285. See also Ins. Co. v. De Hart (Texas) 47 S.W.2d 898; Southern Underwriters v. Page (Texas) 118 S.W.2d 468; State v. District Co. (Minn.) 169 N.W. 488; Johnson v. Ashville Hosiery Co. (N. C.) 153 S.E. 591. Our examination of the cases cited by appellant has convinced us that none of them parallel the case at bar. The employment in which claimant Pope was engaged at time of his injury in making alterations, changes, and adjustments for the employer of store room, rendering it suitable to the peculiar nature of its business, was authorized by its charter and was performed in the usual course of its business. This was clearly proven by the testimony of Paul Stratton, Superintendent of the Cheyenne District, and by Louis Behrens, a regular employee of the company. Some features of this work were extra hazardous. It was not casual employment and the order of award made to claimant should be upheld.

Bard Ferrall, for appellant in reply.

This court in the Lamont case refused to follow the rule laid down in the case of Holman Creamery Co. Ass'n. v. Comm., 167 Wis. 470, but respondent's authorities base the rule therein put forth on the Holman case or on cases stemming from that case. It would follow that such cases are not in point. The Kress Case (Ariz.) 299 P. 1039 is also based on the Holman case. The case of Dillard v. Jones (Ida.) 72 P.2d 705 cited by respondent is clearly distinguishable from the case at bar, as is also Johnson v. Choate (Ill.) 119 N.E. 972. Sherlock v. Sherlock (Nebr.) 201 N.W. 645 is directly contrary to the Lamont case and cannot be followed without overruling the latter. Parks v. Carmell Co. (Tenn.) 79 S.W.2d 285 was decided under the Tennessee statute, which makes the terms "casual" and "usual course of business" synonymous. A careful analysis of the numerous authorities cited by respondent will show similar distinctions as to the facts and statutes involved in each of them. The rule laid down in the Lamont case is not an arbitrary rule. The cases of Murphy v. Gaylord (Tenn.) 28 S.W.2d 348 and Myer v. Davis (Okla.) 18 P.2d 869 discussed in the Lamont case are very much in point. The employment performed by claimant was in its nature similar to that of men employed by a rancher to build a corral or to build fences, fixtures used in the ranch business for pecuniary gain, but a rancher is not required to pay into the fund.

Heard before Riner, Chief Justice; Kimball, Justice; and Harry P. Ilsley, District Judge. KIMBALL, J., and ILSLEY, D. J., concur.

OPINION

RINER, Chief Justice.

This case arises under the provisions of the Workmen's Compensation law of this State. The district court of Laramie County made its award of compensation in favor of, and on account of injuries sustained by, the respondent Pope, who may be hereinafter occasionally mentioned as the "claimant" or the "employee." The award was resisted by the appellant, Safeway Stores, Inc., a Nevada corporation, which may briefly be designated herein as the "employer" or the "defendant." The cause was brought here by the direct appeal method of procedure to obtain a review of the record and the award made thereon.

The facts material to be considered in deciding the controversial point in the case are not greatly in dispute and would appear to be these:

The defendant is a corporation organized under the laws of the State of Nevada, but operates a large number of retail stores in the States of Colorado, Nebraska, Kansas and Wyoming. Its corporate charter is very broad as to corporate powers granted it and authorizes it, among many other things, not only,

"To engage in, conduct and carry on a general retail mercantile business, dealing in groceries, meats, provisions, grain, fruits, vegetables, seeds, flour, and any and all other food products;

"To buy, sell and deal in, at wholesale and at retail, groceries, meats, provisions, grain, fruits, vegetables, seeds, flour, food products, goods, wares and merchandise and personal property of every nature and description";

but also,

"To buy, lease, hold, improve, sell and deal in, real estate, and the fixtures and personal property incidental thereto or connected therewith," * * * *

"To construct, erect, equip, repair and improve houses, buildings, roads, alleys, sewers and conduits; to make, enter into, perform and carry out, contracts for constructing, maintaining, furnishing, fitting up, equipping and improving buildings of every kind; to advance money to, and enter into contracts and agreements of all kinds with builders, property owners and others, and to engage in and carry on in all of its branches, the business of builder, contractor, and dealer in brick, lumber, hardware, and other building materials."

The defendant does not customarily build the store rooms and buildings it uses, but leases them, and then it arranges their interiors to suit its own purposes. The claimant prior to the accident in question now had worked for the defendant on three different occasions: in the City of Laramie Wyoming, in July, 1937, for a week or ten days, installing fixtures in its store there; in Casper during the month of October, 1937, for about eight or ten days, installing fixtures in a store there; prior to working on the fixtures in the City of Casper he had been employed on the...

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