*1 RY. CO. VERMONT v. CENTRAL CHAMBERLAIN Railway Fay H. Co. Vermont v. Central Chamberlain Term, February 1927. Moulton, Slack, Fish, J., Powers, JJ. Watson, C. Present: May 4, Opinion 1927. filed Compensation Act—Jurisdic- and Servant-—Workmen’s Master To Will Evidence De- Examine Supreme Court tion—When Purely Employment. Casual termine Jurisdiction — Act, question Compensation proceeding Workmen’s In 1. compensation person seeking an “Em- for whether juris- I, meaning ployee” is L. of G. subsection within “employee,” dictional, commissioner was not if claimant original jurisdiction, thereby being without industries jurisdiction appeal. Supreme have no on Court would proceed- Though findings of industries 2. of fact commissioner Act, Compensation ings compensation if under Workmen’s for binding evidence, ordinarily legally supported on are Court, question jurisdiction Supreme where of commissioner’s involved, copy of him is and certified all evidence is before Supreme appeal, will made on Court examine of record jurisdiction. determining evidence employment determining 3. whether within meaning Compensation (G. Act L. sub- Workmén’s II), thing analyzed. section for service to be Employment by independent help of farmer saw contractor stipulated price per cord, wood load it into cars term, purely for no held definite casual within (G. pro- II), L. Act subsection “workman,” viding that “employee,” term shall not include “person purely casual,” whose so that com- jurisdiction proceedings missioner of without industries was compensation, authority award and his therein without in law and void.

Appeal findings from of fact order of commissioner awarding compensation, industries to Supreme Court, Lamoille County. defendant, Railway Co., appeals. The Central Vermont CENTRAL RY. CO. VERMONT aside, and vacated, award set Order opinion states case. claim dismissed. *2 H. Powers for the defendant. W. Redmond Horace

J. employment whether Compensation Act Workmen’s Under work upon so much nature depends not “purely casual” employment. the contract of nature upon as preformed Brewing Co. Hickman, Aurora W. Go. v. 899; 248 U. Tel. Fed. Scully In- Board, 142, 207; 115 E. v. v. Indtistrial 111. N. 277 v. Commissioner, Callihan 492; 567, 284 111. 120 N. E. dustrial Montgomery (Pa.), Gaynor’s Case, 217 Mass. 86. 889; 115 Atl. of his was employment

Plaintiff’s at time within not an or “workman” so he was Compensation 5758; Act. L. Workmen’s G. Gaynor’s Case, supra; Case, 219 Kind’s Cheever’s 244; Mass. Case, v. Harmon 417; Charles 290; (Me.), 220 Mass. Atl. 118 Board, Breiving supra; Dyer Aurora Co. v. Industrial v. James Black, etc., 959; McLaughlin Co. v. Indus- (Mich.), 158 N. W. Board, trial Express <& 280 111. N. Baer’s 100, 809; 117 E. Storage Board, Co. v. Industrial 111.44, Cal- 412; 282 118 N. E. lighan Montgomery, supra; Chicago, etc., R. R. Co. v. Indus- v. Commission, trial Maryland 573, 284 111. Casualty 120 N. E. 508; Pillsbury, Co. v. 748, 172 Cal. 158 Pac. 1031; McGrath v. Penn. Sugar Co. (Pa.), Blood v. Industrial Accident 789; 127 Atl. Commission, Augustine 274, 30 Cal. Cotter, 2 157 Pac. 1104; v. Laspada Cal. Industrial Co., 59; Comm. v. Ry. Public Service Ray N. Law, 38 J. v. Commercial Acid 102; Co. (Mo. App.), 227 Herbig v. Walton 851; S. W. Auto Co. (Iowa), 182 N. 204;W. Blake v. Wilson (Pa.), 10 Atl. 126; Consumers’, etc., Co. v. In- dustrial Commission (111.), 124 N. 608; Bridget' E. v. Lincoln <& Co., Feed Fuel 105 222; Neb. Livery Diamond v. Industrial Commission, 289 111. 124 N. E. 609; Bros. v. Thede Indus- Comm., trial 285 111. 121 N. E. 172; Mapleton, Porter v. etc., Co., Iowa, 191 Case, Pooler’s 1031; 122 Me. v. Black, Cousineau 590; 206 Mich. 479. Burden plaintiff was on to show that employment came within Act. Kelley’s Dependents Hoosac Mass, Co., Lumber 95 King’s Case, Yt. page at

W. E. Tracy plaintiff. for the CHAMBERLAIN CENTRAL VERMONT RY. CO. Employment engaged plaintiff which was not be could

regarded casual, regular it because intervals each year, though Braziliero, even but for a short time. Sabella 86 N. Law, 505, J. Atl. 1032; Bros., Inc., 85, Scott v. Paine N. Law, 446, J. 89 Atl. 927. The defendant Statement Chief Justice Watson. action,

this a common passengers carrier of freight, in the summer of job let a to Cassius Hurlburt of town of Cambridge, State, this at Cambridge saw cords four- foot (purchased wood by defendant of person) another into lengths 12-inch and load the same on cars place, at that paid he was to paid per cord, the sum con- ceded August below. 17, 1926, On working while claimant was by Hurlburt, assisting him in re- said work quired to be done him under his said contract rail- with the way company, claimant was accidentally injured.' This accident day occurred on the second there, claimant worked and it arose *3 out of and in the course of the work of employment.

Acting under the Act, the claim- proceedings ant instituted before the industries, commissioner of employee as an of the railway defendant company within the meaning provisions of that act ’set forth in G. L. I. subsection The commissioner, hearing after matter, the his award made of compensation in of claimant, setting findings favor forth his of fact and applicable the law thereto, according to his in views premises. the n hearing had, the by there attorney claimant conceded independent that Hurlburt “was an contractor'.” And the rail- way company by attorney bought its conceded that it this wood (named) man Cambridge, a certain the town of and in- Burlington-Lamoille tended to use it to heat its on stations the ’ spring in the and fall; road there of it were cords mentioned, sawed-under and was which Hurlburt the necesskry per cord; company that it was for the to get $1.75 being prepared that.use; wood was the and its stations heat carrier, 'common etc. The case comes company is a the and that appeal. on defendant’s here by The record shows the facts found the Watson, C. J. industries, awarding -eompensa and-his order commissioner v. RY. CO. CENTRAL VERMONT said shows after in of the claimant. It further tion favor filed, proposed and defendant findings order were the attorneys by therefrom, parties an the their appeal take ease, transcript record, writing in filed in that a agreed the the proceedings of all said matters before the evidence and same, commissioner, by stenographer the who took certified ‘‘ order, part findings shall be said of fact and treated by shall record on Supreme be treated Court as a appeal.” taken, appeal After this was filed the e‘appellant states that th law, claims that as matter of neither findings said of fact nor said order is warranted the evidence. ’

[1] One reason given appellant’s brief why grounds set forth appeal sustained, in the should is that the claimant’s employment at the of his injury “purely casual,” time consequently he was not an “employee,” (terms or “workman” synonymously used) meaning within the of the Workmen’s Com pensation Act. This involves jurisdiction commis industries, sioner’of for if the claimant was not an within act, of that did not case under the come provisions of that statute. It necessarily would from follow such circumstances that the original commissioner was without jurisdiction of the subject-matter, juris and if had no such diction, this Court jurisdiction has appeal. no on Mathewson v. Mathewson, 81 Vt. 69 Atl. 646, L. R. (N. S.) A. Barton Sutton, 93 Vt. 106 Atl. supported by proceedings are ordinarily binding upon Co., ^[2] Vt. While evidence findings (Kelley’s Dependents 818), yet of fact exception commissioner this Court, if Hoosac to this made Lumber legally such where as here the jurisdiction of the commissioner’s involved, copy of all him is certified before the evidence *4 part appeal. amade of the record In these circumstances the on will determining court of question examine the evidence the jurisdiction. Bros. his 483, Ill. Commission, Thede Industrial Board, Hospital E. Industrial

121 N. Hahnemann 282 Ill. N. E. 767. (the

In case, only instant two and his the witnesses claimant employer, Hurlburt) hearing direct be Cassius were at the used commissioner, testimony, fore the their and now a us, party record was before all evidence introduced either RY. CO. v. CENTRAL VERMONT (cid:127) short, with given was and hearing. thus The evidence that behalf, claimant, testifying in his own therein. The conflict out August, Cambridge; that in lived in town of that he stated time, who, at that working for Cassius Hurlburt 1926, he was cars; it was four-foot sawing putting wood and it on that was e‘ ’ handling August that ’; it to the saw on wood, and h on in working employment, such an 17, while under received he fingers off, fingers”; jury, “two were'cut the first and middle working getting day for so he was four dollars a his that when his services; prior that for weeks twelve the time working he farm. on his cross-examination he testified injured day that he was his worked; the second he business farmer, was that of a it; lived on a farm and owned farm forty-five has about acres, three hundred and he or had fifty “Q. sawing head of stock. You were this wood as a sort employment? of casual A. I went because Mr. Hurlburt came help asked me to him.” Cambridge; Hurlburt testified that he lived town of Ver- with the Central August, he had contract that in company whereby job of the took a Railway Company, mont per at $1.75 it the train put of wood and aboard to saw 160 cords (claim- August 17, Chamberlain during week of cord; pay him four ant) him, for which witness was to worked for day working, day; second Chamberlain per dollars that on the saw, cutting fingers on the etc. accident, off two had bearing on in the case foregoing was all the evidence Hurlburt, under claimant’s injury, of his em- working at the time whether he was otherwise. ployment was discussion, the respect particularly In the essentially like that this State Act of Iowa Virginia, Illinois, Michigan, West Massachusetts, States It is mentioned. not here is), and some others (as now it con- likeness to notice such importance more than usual require- express states, because of the given in those struction construction, and against strict of this of the statute State ments as to construed interpreted “shall so provisions that its of those the law general purpose to uniform its make effect it.” states which enact II, “workman” and 5758, subsection By L.G. employ- into the entered person who has mean “to

are defined *5 v. CENTRAL RT. CO. 289 VERMONT apprenticeship of service or of, ment or works under person whose not include a with, employer, an but employer’s trade purpose purely casual or not for the is beginning quotation business,” concluding part The of this etc. description general to the exception is an with the word “but” designated as “workman” preceding part, in persons contains the excepting As clause “employee.” this condition “or,” if' the claimant was within either disjunctive meaning of was not an within the specified, there act, scope operation. not in its so ^[3] In determining whether, in instant case, the em “purely casual” the contract for service is the ployment was Case, thing analyzed. Gaynor’s 86, 217 104 N. E. Mass. 1916A, Brewing 339, 363; L. R. A. Aurora Co. v. Industrial Board, 142, 207; Ill. 115 N. E. Tel. 277 Western Union Co. v. statute), (W. Hickman Va. 248 Fed. 161 A. Calli C. C. Montgomery, han v. 272 Pa. 115 Atl. 889. (Code 1924, in exception compensation Iowa statute '[a]), statute, like that our words uses the

§ casual,” in more states the words used are so “but employee” “casual employment.” some or “casual Yet they class, equivalent are all of the same meaning, and relate to the contract of service. class, patterned There another English Act, after the in which exception persons is of whose employment is “of a casual nature” or words to that effect. the latter point class determinative be, is held to not the con- service, tract of but the nature the service rendered. Of this class are the states, statutes of several including Rhode Island Thompson and Connecticut. Twiss, See Conn. 1916E, L. R. A. generally It is jurisdictions held in those where statutes of this obtain, having character exception substantially like the one under consideration, the word “casual” as therein used, should ordinary, receive its meaning. common This, ac- cording given to one definition in Webster’s Diet., New Int. “coming regularity; without occasional; incidental”; dis- —thus tinguishing from that which is “regular, systematic, periodic, and certain.”

Adverting to the evidence and inferences fairly to be drawn therefrom, we have seen that there was no controversy as to facts. It uneontrovertably appears the claimant, whose CHAMBERLAIN CENTRAL VERMONT RY. CO.

business was that of a farmer, was, injury, at the time of his employment by under Hurlburt, independent contractor, to in help him doing work he had contracted with defendant com

pany do, by to way of sawing the wood putting mentioned and stipulated price per a cars at cord. How the same on board the working employment happened to be such is claimant testimony says, “I by Mr. shown his own where he went because help and asked me him.” for Hurlburt came to specified per day. a was to be sum On the second services day working there, and in performing of the work of em ployment, nothing received the stated. There was be indicating long sawing job fore the commissioner how the was any work last, employed nor claimant was to likely to that time, until it was finished. There was no evidence definite or obligation continue such tending show he was under to that longest any longer choose, than he should which at could work job only completion job. Certainly that until of one be the the something permanent, considered as nor as which cannot be regular periods or ever. And both end of at the would recur have understood that the latter’s must and the claimant Hurlburt things, not, in be continu the nature of employment could said Co. v. Industrial Com Mut. Oil Production In Consumers’ ous. while the appeared 124 N. E. it that mission, 289 Ill. Producing having assistance Company, was the employer, an Oil pump pump jack in of a in the employee repair used of the the employee injured; ing company, the the was of crude oil than employment, other for the time fixed no definite there was to the manager employer’s the business of of the statement the probably employment, that would it the time employee at only question may longer. The weeks, and be or four be three employment or not of was whether the by the record presented injury was but casual. The at the time employee the largely upon its decided case must be “While each court said: Legislature that, intended where one facts, own we believe work, employment particular kind of employed to do ground regularity, and where there is reasonable recurs period for a will continue reasonable that such recurrence hand, not other where employment casual. On the time, such perma job cannot be employment for one characterized regular, by chance, with the but occurs periodically nent or understanding employer on the both intention CHAMBERLAIN RY. CENTRAL CO. VERMONT The rule employee continuous, that it it is casual.” shall not being that case, holding quoted applied was here saying in con employment casual, court further in similarity circum quote great it nection—we because doing in stance to the bar —“The work he was to assist case at he and particular work, was a certain which both piece employer require There was his nothing knew would but a short time. employment nor the relation of the contract parties, evidence, prior time, these then or to that shown which would indicate that such was to be either ’’ recurring. reasoning continuous or and conclusion in that case on the employment, closely casual followed by the same court the later of Charles A. & case Smith Co. Commission, Industrial 299 Ill. 132 N. E. 470. Other involving general cases question, holdings, same with like *7 following: Gaynor’s are Case, supra; Case, Cheever’s 219 244, Mass. 106 N. E. 861; King’s Case, 290, 220 Mass. N. E. 107 959; Hickman, Western Union Tel. Co. v. supra; Herbig Wal v. Co., ton Iowa, Auto 394, 182 N. 204; Mapleion W. Porter v. Light Co., Iowa, Case, Electric 1031, 183 N. W. Pooler’s 11,Me. 118 Atl. 590; v. Black, Cousineau 206 Mich. 479. 173 N. W. 203.

[4] We think it clear that the of the claimant purely casual of at time and not that he was “employee,” the meaning "within Compen of the Workmen’s being so, sation Act. This the alternative condition the ex ception is immaterial and not considered. It follows that the jurisdiction commissioner of industries without of the sub ject-matter, and authority award without law void. The same result was reached on the alternative condition in exception, in Moretoiun Packett Creamery Co., 91 Vt. 99 Atl. L. 1918F, 173, R. A. and in Wlock v. Port Bummer Mills, 98 Vt. 311, recently decided, plain where the tiff, minor, min empolyed was held to have been in defendant’s in violation of the regulating statute child labor, and that since she “was not an ‘employee’ within the true intent of the Workmen’s Act, she was subject not provisions thereof, nor was remedy provided there applicable seeking damages for injuries suffered.” And it was further there held rule of liberal construction does not CO., MANLEY INC. SOMERS. BROTHERS provisions* objects out- purposes

extend of a “the statute ” beyond side of and it. those mentioned ' vacated, Order and claim with aioard set aside dismissed judgment costs. commissioner in- Let to the certified dustries. Manley Co., X. Inc. E. Brothers Somers.

Special Brattleboro, March, Term 1927. Powers, Slack, Pish, Moulton, JJ. Watson, J., Present: C. May Opinion filed Third Persons Lien as to Sale—'Waiver Sales —Conditional Non-Compliance Con- Permission Resale —Effect of for inNot Resale Given —Sale Permission dition on Which for Business —Novation n —New Regular Course of — n Debtor Inten- Necessity Intention To Make Novation—Pr'oof of Supporting Presumptions Not tion —Novation Presumed — Pay- Judgment Insufficiency Fads To Show Novation — — Indebted- Presumption Given Previous as to Note ment — Payment Insufficiency To Findings Show Note ness— and Conversion. Indebtedness- —Trover pass upon property is not to title condition is sold 1. Where understanding upon reserved, payment, or with lien until *8 business, buyer ordinary course it is to be sold and, implied sell, to license amounts to an of seller silence security, upon, far so an irrevocable waiver acted when are concerned. persons third sale, buyer parties to sell conditional license to 2. As between may conditional, ordinary property be of business course applied proceeds is that of sale shall condition and where binding, price, purchase payment such condition is necessary justify compliance sale and validate therewith is parties. as between such partnership reservation of was sold to Where automobile payment purchase price, upon un- until title seller