State Acc. Fund. v. Jacobs

• Decision Date: 07 March 1919
• Docket Number: No. 89.,89.
• Citation: 106 A. 255
• Parties: STATE ACC. FUND et al. v. JACOBS.
• Court: Maryland Court of Appeals

106 A. 255

STATE ACC. FUND et al.

v. JACOBS.

No. 89.

Court of Appeals of Maryland.

March 7, 1919.

Appeal from Circuit Court, Caroline County; W. H. Adkins and Philemon B. Hopper, Judges.

Proceedings by Julia Jacobs under the Workmen's Compensation Act to obtain compensation for the death of her son.From an order in favor of the applicants, the State Accident Fund and the State Industrial Accident Commission appeal.Order affirmed, and case remanded.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Ogle Marbury, Acting Atty. Gen., and Philip B. Perlman, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for appellants.

T. Alan Goldsborough, of Denton, for appellee.

URNER, J.The appellee's son was fatally injured by being thrown against a post as ho was driving a wagon loaded with canned tomatoes out of the packing factory of his employer.The only question to be decided on this appeal is whether he was a "casual employe" within the meaning of the Maryland Workmen's Compensation Act, which excepts "casual employes" from its provisions.Code, art. 101, § 63, par. 3.

The injured man, who was a farmer and teamster, had been employed to do hauling for the factory whenever he was needed for that service.His employer testified:

"He was engaged to me early in the canning season to work for me at such times as I might need him, and he promised to help me out at all such times as I might call upon him, and he did so; the day of the accident being the last of the work he had for the season."

To the question, "Was there no separate engagement or contract of hiring for the work he was doing on the day of the accident?" the employer replied:

"Nothing more than just to tell him to come; the same wages paid all the time, always during the season the same wages."

Under this general engagement, the teamster who was injured had been called upon repeatedly for hauling service in the course of the packing season, being paid at the uniform rate of $3 per day when he hauled with his own team, and $1.50 per day when a factory team was used.

The Workmen's Compensation Act of this state does not define the term "casual," as therein used to describe one of the classes of employes to whom the act is not intended to apply.It is a purely relative term, and, in the absence of a statutory definition, its application should be determined in each case according to the particular facts presented.The act defines an "employe" to be:

"A person who is engaged in an extrahazardous employment in the service of an employer carrying on or conducting the same upon the premises or at a plant, or in the course of his employment away from the plant of his employer."

There can be no dispute as to the fact that the appellee's son was an "employe," within the definition of the act, at the time he was injured; but it is contended that his employment was so irregular that it should be characterized as only "casual," within the meaning of the act, and therefore expressly excluded from its operation.

The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service.One who enters into a contract of employment for an entire season is not a casual employe merely because he may be required to work for only short and irregular periods.When there is a continuing engagement to serve the employer in his business at such times as the particular and essential service may be needed, the employment is not "casual" according to any of the judicial definitions of that term.In this case the service required and rendered was occasional, hut it was in pursuance of an engagement covering the whole of the working season at the employer's plant.

In Sabella v. Brazlleiro, 86 N. J. Law, 505, 91 Atl. 1032, where a longshoreman was employed at a certain sum per hour to help load a ship, having frequently rendered similar service to the same employer on previous occasions, it was held that the employment was not casual under the New Jersey Employer's Liability Act(P. L.1911, p. 134).It was decided in Boyle v. Mahoney, 92 Conn. 404, 103 Atl. 127, that one who kept machinery and boats in order at an...