Summary
In Dawson v. Joe Chester Artificial Limb Co., 62 Idaho 508, 11 P.2d 494, a workman was engaged at an hourly wage to calcimine the walls and ceiling of the place of business of a manufacturer and seller of artificial limbs.
Summary of this case from Schindler v. McFeeOpinion
No. 6839.
May 7, 1941.
APPEAL from the Industrial Accident Board.
Appellant appeals from an order of the board denying him compensation. Affirmed.
Elam Burke, for Appellant.
An employment is not casual where the employer can reasonably anticipate the necessity for such employment at the time of contracting for his Industrial Accident insurance. ( Dillard v. Jones, 58 Idaho 273, 72 P.2d 705; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403; Flynn v. Carson, 42 Idaho 141, 243 Pac. 818.)
Clarence L. Hillman, for Respondents.
None of the provisions of the workmen's compensation law apply to casual employment "unless prior to the accident for which the claim is made, the employer had elected in writing, filed with the board, that the provisions of the act shall apply." (I. C. A., sec. 43-904, subd. 3; Kindall v. McBirney et al., 52 Idaho 65, 11 P.2d 370; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403.)
The respondent, Joe Chester Artificial Limb Company, appellant's employer, is engaged in the manufacture and sale of artificial limbs and orthopedic appliances, and for such purpose rents a room approximately 26 feet wide and 40 feet long, fitted with shelves and a counter, for a place of business. Just prior to May 4, 1940, said employer engaged carpenters to change a partition in the building, and upon completion of the carpenters' work, the evening of May 4th, appellant was employed at seventy-five cents per hour to calcimine the walls and ceiling of said building. While so engaged appellant slipped and fell a distance of 12 feet from a scaffold to the floor and thus sustained a comminuted fracture of the right tibia.
The board denied appellant's claim for compensation on the ground appellant was engaged in casual employment (the only and controlling point) and his employer had not elected to come within the provisions of the workmen's compensation act. (I. C. A., sec. 43-904, subd. 3.)
The employer, as a witness for appellant, testified he was responsible for the up-keep of the interior of the building and felt it necessary in his business to keep the interior clean and inviting and had thoroughly cleaned and redecorated it at least three times since August 11, 1936; that he has "had it cleaned and calcimined, and I had it repainted just as it became dirty and needed it"; the last time it had been calcimined was about two years ago.
The board was justified in finding and concluding the employment was casual because it was "merely incidental and occasional, without regularity and for a limited and temporary purpose and was not a regular recurring employment which was customary and to be anticipated with regularity," hence the accident was not compensable. ( Orr. v. Boise Cold Storage Co., 52 Idaho 151, 155, 12 P.2d 270; Rabideau v. Cramer, 59 Idaho 154, 158, 81 P.2d 403; Perroni v. Farley, (N.J.) 182 Atl. 353; Fedak v. Dzialdowiski, (Pa.) 172 Atl. 187; Quick v. E. B. Kintner Son, (Pa.) 172 Atl. 189; In re Lamont, (Wyo.) 41 P.2d 497; Thompson v. Wagner, (N.J.) 135 Atl. 800; Pacific Employment Ins. Co. v. Department of Industrial Relations, (Cal.) 267 P. 880; Ostlie v. H. F. Dirks Son, (Minn.) 248 N.W. 283.)
Order affirmed.
Holden and Ailshie, JJ., concur.
This case cannot be distinguished, in principle, from Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403. In that case, and in this one, the court appears to me to have denied recovery for the claimant's injuries by means of a strict construction of the workmen's compensation law instead of ruling in favor of the claimant as a result of a liberal construction thereof, in conformity to the spirit and purpose of the law. ( McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 Pac. 1068; Flynn v. Carson, 42 Idaho 141, 243 P. 818; In Re Hillhouse, 46 Idaho 730, 271 P. 459; In Re Larson, 48 Idaho 136, 279 P. 1087; Reinoehl v. Hamacher Pole etc. Co., 51 Idaho 359, 6 P.2d 860; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Van Blaricom v. Export Lbr. Co., 52 Idaho 459, 16 P.2d 990; Cooper v. Independent Transfer etc. Co., 52 Idaho 747, 19 P.2d 1057; Dorrell v. Norida Land Timber Co., 53 Idaho 793, 27 P.2d 960; Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769; Beaver v. Morrison-Knudsen Co., (on rehearing) 55 Idaho 291, 41 P.2d 611; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 74 P.2d 171.)
I dissented from the decision in Rabideau v. Cramer, and am concurring in this one only because it appears to conform to the settled policy of the court in cases of this kind.