Holmen Creamery Ass'n v. Industrial Commission

167 N.W. 808, 167 Wis. 470, 1918 Wisc. LEXIS 118

• Court: Wisconsin Supreme Court
• Decided: May 21, 1918
• Status: Published

Opinion

Vinje, J.

The question raised by the appeal is, Was Wallum at the time of his injury an employee of the Holmen Creamery Association within the meaning of the Workmen’s Compensation Act? Sec. 2394 — 7 of that act provides that

“The term 'employee’ as used in sections 2394 — 1 to 2394 — 31, inclusive, shall be construed to mean: . . .

“(2) Every person in the service of another under any contract of hire, express or implied, oral or written, . . . but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.” Stats. 1915.

In 1917 the legislature amended this section by striking out the words “is but casual or,” so that in the future eases like the present will not arise.

It is quite evident that the term “employment” used in the quoted section refers to the nature or kind of service rendered by the employee rather than to the nature of his contract of hiring. The true test, therefore, is whether the service rendered or the work done by the employee is of a casual nature. The difficulty of applying this test lies not so much in the selection of a correct definition of the adjective casual as in determining whether a given state of facts comes within the definition selected. Our standard dictionaries give six or seven different definitions of the word, only two of which need be considered. The first or primary meaning of the word is “happening or coming to pass without design, and without being foreseen or expected, accidental, coming by chance.” The secondary meaning is “coming without regularity or at uncertain times, occasional, incidental.” Neither of these definitions alone exactly fits the meaning of the word as used in the statute. As therein used it implies an element of chance or lack of design or intention as to the occasion that gives rise to the employment, but not as to the hiring or service to be rendered when such occasion has arisen. 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. Gaynor’s Case, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506; 1 Honnold, Workm. Comp. § 62; L. R. A. 1916A, 247, note; Id. 365, note.

The defendant dreamery Association was engaged in the business of conducting a creamery. For the proper conduct of such a business a building was necessary. It is the common experience of mankind that buildings need repairs from time to time. Indeed, it is so common that the Income Tax Law allows for the deduction of repairs from rentals received, and all business concerns of any magnitude provide for a repair account or a fund to meet sucb expenses. It is in evidence that the claimant here had several times repaired this building. The making of repairs, therefore, belongs to the category of things to be expected and provided for. True, repairs come at irregular intervals and one cannot accurately foretell just when they will be needed. But needed they will be in any business that endures for any considerable length of time. They are therefore á part of the employer’s business, to be anticipated and met when necessity or convenience dictates. Being an essential and integral part of every business employing material things in its prosecution, no reason is perceived why one employed to make them should not be classed as an employee of the one for whom they are made. They are essential to the successful prosecution of every business whose implements are subject to the corroding touch of time and a usual concomitant thereof. ' They are foreseen, provided for, and made when necessary or convenient. The fact that one cannot exactly foretell just when they will have to be made is immaterial. On the same principle a proprietor of a meat market who has to hire extra help Saturdays or on busy days, though at irregular intervals, and does so, makes such extra help an employee within the meaning of the statute. Jordan v. Weinman, post, p. 474, 167 N. W. 810. And because the cleaning up after repairs is a part of the repair work, one employed to do that is an employee within the act. F. C. Gross & Bros. Co. v. Industrial Comm., post, p. 612, 167 N. W. 809.

By the Court. — Judgment reversed, and cause remanded with directions to reinstate and confirm the award of the Industrial Commission.

Oweh, J., took no part.