Rabideau v. Cramer

• Decision Date: 07 July 1938
• Docket Number: 6542
• Parties: GEORGE RABIDEAU, a Minor, by GEORGE RABIDEAU, His Natural Guardian, Respondent, v. JOHN W. CRAMER, Employer, and AETNA CASUALTY AND SURETY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

81 P.2d 403

59 Idaho 154

GEORGE RABIDEAU, a Minor, by GEORGE RABIDEAU, His Natural Guardian, Respondent, v. JOHN W. CRAMER, Employer, and AETNA CASUALTY AND SURETY COMPANY, Surety, Appellants

No. 6542

Supreme Court of Idaho

July 7, 1938

WORKMEN'S COMPENSATION-CASUAL EMPLOYMENT.

1. As respects nonliability of an employer under the Workmen's Compensation Act for injuries sustained by an employee engaged in casual employment, the word "casual" applies to the employment and not the employee. (I. C. A sec. 43-904.)

2. A hard-and-fast definition of "casual employment" within the Workmen's Compensation Act is not possible and each case must be decided largely on its special facts. (I C. A., sec. 43-904.)

3. Where evidence in a compensation case is undisputed determination of whether a proper application of the law has been made to the evidence is a question of law for the reviewing court.

4. Where an attorney who had his windows washed at intervals varying from two to six months employed a minor who applied for job to wash windows, "employment" was "casual" under the Workmen's Compensation Act since employment was uncertain, occasional, at irregular intervals, and for a limited and temporary purpose precluding recovery of compensation for injuries minor sustained. (I. C. A., sec. 43-904.)

APPEAL from the Industrial Accident Board of the State of Idaho.

Proceeding for compensation under the Workmen's Compensation Act by George Rabideau, a minor, by George Rabideau, his father and natural guardian, opposed by John W. Cramer, employer, and Aetna Casualty and Surety Company, surety. From an award of compensation by the Industrial Accident Board, the employer and surety appeal. Reversed.

Award reversed. Costs awarded to appellants.

Weldon Schimke, for Appellants.

Employment is casual if it is without regularity or is occasional or is only incidental to the work in which the employer is engaged. (Flynn v. Carson, 42 Idaho 141, 243 P. 818; Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270; Western Union Tel. Co. v. Hickman, (W. Va.) 248 F. 899, 161 C. C. A. 17; In re Gaynor, 217 Mass. 86, 104 N.E. 339, L. R. A. 1916A, 363.)

No appearance for Respondent.

HOLDEN, C. J. Ailshie and Givens, JJ., concur, BUDGE, J., concur in the conclusions. MORGAN, J., Dissenting.

OPINION

HOLDEN, C. J.

John W. Cramer is a practicing attorney at law, renting and maintaining offices in the city of Lewiston, Idaho. By agreement with the owner of the building in which his offices are located, janitor service is supplied by Cramer himself who employs a janitor to do all his janitor work except washing windows. Whenever the windows needed washing, Cramer "picked up somebody that would come along and let them do it." The windows were washed "sometimes once every six months, sometimes every two months. Whenever we (Cramer) get around to having it done."

George Rabideau, a minor, about 15 years of age, washed windows in three different buildings for a period of about two weeks. Then, and on March 8, 1937, he, with another minor, entered Cramer's office with a bucket and some rags and asked Cramer's secretary for a job washing windows. She went into an adjoining room and consulted Cramer about the matter and he said "Yes, it would be all right." Returning, the secretary agreed to pay the boys 25 [cent] a window for washing four windows. While washing the windows, young Rabideau fell and broke a leg and was immediately taken to a hospital. Hospitalization for the boy amounted to $ 68.10, and medical attendance, $ 75.00.

July 24, 1937, claim for compensation was filed and November 5, 1937, a hearing was had before the Industrial Accident Board. December 14, 1937, the Board awarded compensation for hospitalization and medical attention in the sum of $ 143.10, from which award Cramer and his surety appeal.

Respondent was not represented at the hearing of the appeal of this cause nor has he filed a brief. We have, nevertheless, carefully investigated the law bearing upon the right of respondent to recover compensation.

Appellants contend minor Rabideau's employment was "casual" and, consequently, under the provisions of section 43-904, I. C. A., he is not entitled to compensation.

At the threshold of the consideration of appellants' contention, we point out that the word "casual," as used in the statute (sec. 43-904, supra) applies to the employment and not to the employee (Dillard v. Jones, 58 Idaho 273, 72 P.2d 705), and that time has confirmed the wisdom of the conclusions, early arrived at by the English authorities, that no hard-and-fast definition of the term "casual" is advisable (Honnold on Workmen's Compensation, vol. 1, p. 199, sec. 62), and that each case must be decided quite largely upon its special facts (Dillard v. Jones, supra).

Many cases may be found defining a "casual" employee, "casual" employment, and "regular" employment, but they are not very helpful here because the courts define those terms in the sense in which they are used in the particular statute under consideration, and no two statutes are identical. As this court said in Flynn v. Carson, 42 Idaho 141, 243 P. 818, little more is gained from the adjudicated cases than the summary of the federal court in Western Union Tel. Co. v. Hickman, 248 F. 899, 161 C.C.A. 17, that "If the hiring be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business, the employment is 'casual' and covered by the exception." We then quoted with approval the definition given the term "casual employment" by the Supreme Court of Wisconsin in Holmen Creamery Assn. v. Industrial Com., 167 Wis. 470, 167 N.W. 808, where that court in construing a statute afterwards amended but which excluded "any person whose employment is but casual or is not in the usual course of the trade," said:

"Hence, an employment that is only occasional, or comes at uncertain times, or at irregular intervals, and whose happening cannot be reasonably anticipated as certain or likely to occur or to become necessary or desirable is but a casual employment within the meaning of the statute. It is one that arises occasionally or incidentally and is not a usual concomitant of the business, trade, or profession of the employer."

The facts in the Flynn case, supra, were substantially as follows: That an autobus line was operated regularly between Mullan and Wallace; that it was the custom of the proprietors of the line to run one or more extra stages from Wallace to Mullan or from Mullan to Wallace on Saturday nights; that for a while Flynn was a regular driver but, having been discharged, immediately thereafter took up employment as a barber; that, nevertheless, he was available to the proprietors as an extra driver; that at least one extra driver, and sometimes two, were customarily employed on Saturday nights; that one of the proprietors of the line went to the barber shop where Flynn was employed and asked him to go to Wallace that evening and drive a bus back; that Flynn was on his way from Mullan to Wallace to drive the bus back when the bus in which he was riding left the road and Flynn was killed, it being conceded that Flynn was an employee going to his work at the time of the accident.

In pointing out that Flynn's employment was not "casual," when tested by the definition of that term...