72 P.2d 705 | Idaho | 1937
Lead Opinion
Appellant is a real estate broker and fire insurance agent. He purchased a building for resale having at that time a prospective customer therefor. Before title was perfected the customer withdrew his offer to purchase and in order to sell or rent the property appellant was compelled to improve its condition and remodel it. In connection with this work he employed among others, respondent on December 26th, 1935, who began work by taking out some ceiling joists and laths. On the 27th, while shingling on the roof, he slipped and slid off breaking his leg, resulting in a permanent injury. Notice and claim for compensation were given which were resisted by appellant on the ground the employment was casual and not in his trade or occupation carried on for the sake of pecuniary gain. The Board awarded compensation which the district court on appeal sustained which is the judgment for review here, on the same contentions.
The evidence is undisputed that prior to the time of this accident respondent had worked about a month for appellant in the remodeling of appellant's own home and though respondent at the time of the instant accident was only in his second day of employment on the particular house, while he was in the hospital appellant told respondent "to hurry up and get well and he would put me back to work again as soon as I was able," and the remodeling of the house continued for about six months although respondent was unable to return to work.
Appellant contends these facts show the employment was casual and that it was not appellant's business to build or remodel houses. The facts in the cases cited by appellant in support of his position while somewhat similar do not under statutes similar to ours, involve the precise situation here, namely where a real estate broker when he had remodeling to do, of property which he occupied himself or had for resale or rent, did it himself on force account, and where there was this additional fact that appellant herein himself testified with regard to this feature of the case as follows:
"Q. The rooms were repaired for rental purposes and they have been rented since?
"A. Part of the time. *276
"Q. And a revenue derived from them?
"A. . . . .
"Q. You have derived rental therefrom since the rooms were remodeled in your home?
"A. Part of the time, yes.
"Q. You acquired the house on Shilling Avenue as a real estate broker?
"A. Yes.
"Q. You bought it to resell?
"A. Yes.
"Q. Put some of your money in it?
"A. Yes.
"Q. You intended at that time to resell it and then the deal fell through?
A. Yes.
"Q. That acquisition of yours and that acquirement of it was in your real estate business?
"A. Yes.
" . . . .
"Q. And you determined to remodel it and make an apartment house out of it?
"A. Yes.
"Q. And that is what you proceeded to do?
"A. Yes.
"Q. You remodeled that house and made four apartments out of it?
"A. Yes.
"Q. And you did that for rental purposes?
"A. Or for sale, yes.
"Q. Either one?
"A. Yes.
"Q. At any rate your intentions was to either get those apartments in shape so you could rent them or sell the entire property at a profit?
"A. Yes.
"Q. That is what you were intending to do?
"A. Or get my money out of it.
"Q. You are renting those apartments now?
"A. I did sell them. *277
"Q. You sold the house and at a profit?
"A. No.
"Q. You sold your house and got your money out of it?
"A. I don't think I did get my money out, no.
"Q. You finished the construction of the apartments in yourbusiness as a real estate agent and you sold the house you hadacquired in your business?
"A. Yes." (Emphasis ours.)
An analysis of the cases cited by appellant discloses the following:
In Lamont v. Intermountain Realty Co.,
In Carsten v. Department of Labor Industries,
Edwards v. Department of Labor Industries,
In Lackey v. Industrial Com.,
Coleman v. Bartholomew,
Kaplan v. Gaskill,
In Uphoff v. Industrial Board of Illinois,
The case of Johnson v. Choate,
In Millard v. Townsend,
In Vandervort v. Industrial Com.,
In Holmen Creamery Assn. v. Industrial Com.,
In Western Union Tel. Co. v. Hickman, 248 Fed. 899, 161 Cow. C. A. 17, the West Virginia Act defines its exception by the words "casual employment" and "persons casually employed" and the court holds this to apply not to the nature of the work performed but to the nature of the contract of employment and a lineman employed for five days by a telegraph company to repair a clock circuit was therefore a casual employee. This case was not decided under the Workmen's Compensation Act, which was used as a defense.
As correctly stated in connection with the determination of when the employment is or is not casual in 37 C. J. 346, "each case must be decided quite largely upon its special facts."
Thus we decide this case on the facts here presented and appellant's own statements as to what he did in connection with and as part of his business, beyond that we need not and do not go.
Thus the cases cited by appellant are not in point or controlling because appellant himself testified this remodeling was in connection with his business as a real estate agent and that he did it for the purpose of getting his money out of the property. It is obvious that an employer cannot escape liability for compensation on the ground that he is not engaged in a business for pecuniary gain because on some transactions he loses money. (Modlin v. Twin Falls Canal Co.,
"Note: This accident was caused entirely by inexperience and negligence of the injured. He claimed to have been experienced in shingling work. He constructed a three cornered box to sit on, while the established and customary method is a cleat made of a 2 inch board and fastened on with shingles. His box gave way causing his fall."
which ground is not a valid defense under our statute, I. C. A., sec.
Orr v. Boise Cold Storage Co.,
Appellant makes complaint that the trial court did not make findings of fact and conclusions of law of his own but adopted those of the board. While the findings made by the board could and should have been more extensive, no prejudice is shown by reason of the fact that further findings were not made and since the evidence above, basis of the award, is undisputed the findings considered with the evidence are sufficient. (Industrial Com. v. Big Six Coal Co.,
Judgment affirmed. Costs awarded to respondent.
Ailshie and Budge, JJ., concur.
Concurrence Opinion
Appellant relies on Orr v. Boise Cold Storage Co.,