Sometimes called the nonbusiness exemption, see 1C A. Larson, Workmen's Compensation § 50.21 (1986), this exception excludes employees who would otherwise be entitled to protection under the Act, but whose employment, usually temporary, is of a character different from the ordinary business of his employer. See Eddy v. Bangor Furniture Co., 134 Me. 168, 183 A. 413 (1936); Peters v. Michienzi, 385 Mass. 533, 432 N.E.2d 696 (1982). Brubach contends on appeal that the exception appearing in subsection 2(5)(A)(2) is simply a paraphrase for independent contractor. He cites in support of his thesis Madore v. Liberty National Bank, 289 A.2d 36 (Me. 1972), and points to the later enactment of P.L. 1983, chs. 402 and 554 deleting the language appearing in subsection 2(5)(A)(2) and replacing it with the words "[a]n independent contractor."
They may not be based upon mere speculation, guess, or conjecture as to what might have occurred. Kentwood Lumber Co. v. Illinois Cent. R. Co., 5 Cir., 65 F.2d 663, 665; Eddy v. Bangor Furniture Co., 134 Me. 168, 183 A. 413; Bechard v. Lake, 136 Me. 385, 11 A.2d 267, 270; Wright v. Conway, 34 Wyo. 1, 241 P. 369, 242 P. 1107, 1111; Reese v. Smith, 9 Cal.2d 324, 70 P.2d 933, 935; Latham v. Hankey, 117 Conn. 5, 166 A. 400, 401; Fort Smith Gas Co. v. Blankenship, 193 Ark. 718, 102 S.W.2d 75, 76; Texas Employers' Ins. Ass'n v. Mints, Tex.Civ.App., 10 S.W.2d 220, 222. The evidence, and the only reasonable inferences that may be drawn therefrom, lead to the conclusion that there was a causal connection between the unlawful operation of the still and the unlawful possession of the whiskey and the death of the insured.
Inferences based on mere conjecture or probabilities will not support a verdict. Duchaine v. Fortin, 1963, 159 Me. 313, 318, 192 A.2d 473, 476; Olsen v. Portland Water District, 1954, 150 Me. 139, 144, 107 A.2d 480, 483; Bechard v. Lake, 1940, 136 Me. 385, 391, 11 A.2d 267, 270; Eddy v. Bangor Furniture Co., 1936, 134 Me. 168, 172, 183 A. 413; Eastport Water Company v. E.A. Holmes Packing Company, 1922, 121 Me. 345, 117 A. 311; Bennett v. Thurston, 1921, 120 Me. 368, 114 A. 459. In Manchester v. Dugan, Me., 1968, 247 A.2d 827 at page 829, however, we said:
"When one party terminates the cohabitation by desertion, the other is not bound to take any steps to restore it. . . . Conduct which in itself is proper cannot be made improper by inquiring what he would have done in an event which did not happen." In the quarter century which has elapsed since the adoption of the Workmen's Compensation Act, its jurisprudence has become established in the sense that its philosophy, its administration, its system, and its principles have been analyzed, expounded and judicially applied with practical unanimity by all courts. Thus, with reference to the finality of findings of fact by the Commissioner, our own reports are replete with judicial decisions which need no citation except to call attention to the recent case of Eddy v. Furniture Co., 134 Me. 168, where the question is reviewed. This also applies to the usual phases of the issue as to whether the accident arose out of and in the course of the employment.