Thе appellant is the wife of one Charles Her-big, deceased. After the death of the said decedent, the appellant filed an application for arbitration with the industrial commissioner of the state, claiming compensation under the Workmen’s Compensation Act. A committee awarded compеnsation to the appellant, and the matter was duly prosecuted to the industrial commissioner for review, who reversed the award of the arbitration committee. Thereupon, an appeal was taken to the district court of Mahaska County, Iowa,, where the action of the said commissioner was, by judgment оf said court, duly approved. An appeal was prosecuted to this court, and said cause was reversed. Herbig v. Walton Auto Co.,
The question involved in this appeal was in no way involved in the former appeal. It is not disputed that Charles Herbig met his death through an accident arising out of his employment by the Walton Auto Company. The Walton Auto Company moved its locatiоn from one building to another, and the party about to occupy the former location desired to have the upstairs room of the building cleaned out. The Auto Company had left a considerable amount of rubbish at said place, and a salesman for the Auto Company went to the home of the decedеnt and left word for the decedent to come to the office of the Auto Company, which he did. He reported that he was then engaged on another job, but that, as soon as he got through, he would do the work of cleaning out the room.
It was estimated that the work would have taken a day or a day and a half to сomplete. Nothing was said about how much he was to be paid, nor how long he was to stay. While engaged in the work, he was bringing a barrel down the stairway, and fell, striking the cement floor, from which injury death resulted.
About three weeks before this time, he had worked for the Auto Company a day and a half or two days, cleaning up the place to which the company was moving, and had been paid $3.50 therefor. The industrial commissioner found that the decedent had previously worked for the appellee at irregular and somewhat infrequent intervals, in what might be termed an “odd-job capacity.” At various times, he worked two or three hours at a time, but there was no agreement with him as to when he was to work, other than to do these little jobs as the company needed him and employed him to do them.
In regard to his compensation, an officer of the Auto Company testified that he would ask the decedent what the job amounted to, and usually left it to him to fix the price; and that, during the past two years, he had never hired him a full day straight through. He testified that, in the aggregate, decedent probably worked somewhere near three weeks a year for the company in this manner.
The evidence showed that the decedent had, on one occasion, washed cars for the company; on another, had painted a truck; and on another, had helped clean out the cellar.
The foregoing is the substance of the facts, as found by the industrial commissioner. We have held that the courts will not interfere with the finding of facts made by the industrial commissioner, if the evidence is in conflict or is open to the drawing of different conclusions, even though it may be thought that the findings are erroneous. Norton v. Day Coal Co., 192 Iowa —; Pace v. Appanoose Comity,
The question, therefore, for our consideration is whether or not, under these facts, the conсlusion of the industrial commissioner and of the district court, that the employment of the decedent was casual and within the exception of the Workmen's Compensation Act, was correct. As originally drawn, the Workmen’s Compensation Act of this state, Code Supplement, 1913, Section 2477-ml6, in describing those subject to the aсt, contained this exception:
“Except a person whose employment is purely casual and not for the purpose of the employer’s trade or business or those engaged in clerical work only.”
The thirty-seventh general assembly, by Chapter 270, Section 10, amended this clause by striking out the word “and” and inserting in lieu therеof the word “or.” This made a very vital and substantial change in the meaning of the act. As now written, the law excepts persons whose employment is “purely casual,” and also excepts those whose employment is “not for the purpose of the employer’s trade or business.” Under our statute, as it, is now worded, the еmployment may be for the purpose of the employer’s trade or business, but, if it is “purely casual, ’ ’ the law does not apply. On the other hand, if the employment is entirely outside of the purpose of the employer’s trade or business, although it may not be casual, it does not come under the statute. This distinction must be bornе in mind in examining the authorities. As originally enacted, our statute
The reasons for the exception in the statute are obvious. The employer is requirеd to insure his liability under the act, under supervision of the state department of insurance. It evidently was the intent of the legislature that this was not required for employees whose employment was “purely casual,” nor for such employees as were not employed “for the purpose of the employer’s trade or business.”
We had occasion to consider the question of the construction of the term “whose employment is purely casual” in the recent case of Bedard v. Sweinhart,
“If this was not a ‘casual employment,’ it would be hard to apply the term to any employment. The word ‘casual’ is defined in the dictionaries as ‘coming without regularity; occasional; incidental;’ ‘coming at uncertain times or without regularity, in distinction from stated or regular;’ ‘a laborer or an artisan employed only irregularly.’ See Webster and Century Dictionaries. ’ ’
Our holding is in line with that of other states that have a similar statute. The Massachusetts statute is like our present statute. In Gaynor’s Case,
“The crucial words to be construed are those contained in the exception out of the class of employees of ‘one whose employment is but casual.’ The word ‘casual’ is in common use. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity, and is occasional and incidental. Its meaning may be more clearly understood by referring to its antonyms, which are ‘regular,’ ‘systematic,’ ‘periodic,’ and ‘certain.’ ”
It was held that the employment was “but casual.”
In Blood v. Industrial Acc. Com.,
In Bridger v. Lincoln F. & F. Co., (Neb.)
“Plaintiff began to unload a car of coal for defendant, February 21,1920, and finished the task the next day. He began to unload another car, February 23, 1920, and was injured the following day, before he had removed all of the coal. For these services he was paid $20 by check of defendant, being 25 cents a ton. About a week earlier, plaintiff had unloaded a car of coal for defendant in the same yards. During a year’s time previously, he had unloaded three or four cars, and received 25 cents a ton. He was еntitled to his pay when he unloaded a car, and could then get it, if he could find defendant’s manager at the time. Plaintiff in each instance was employed to unload a particular car of coal. Between jobs, he sometimes stayed around defendant’s yards; and, when a car of coal came in, he asked for the unloading, was told the price, and performed the service; but during some of the intervals he had worked for others.”
It is unnecessary to extend this opinion by quoting from the authorities of the various states at length, but, as sustaining the general'rules and definitions abovе announced, see Aurora Brewing Co. v. Industrial Board,
Counsel for appellant cite and place great reliance upon the case of Sabella v. Brazileiro, 86 N. J. L. 505 (
"While this class of work was not constant, depending upon there being a ship of the prosecutor in port, it appears that the deceased was frequently called upon by the prosecutors to serve them in this particular character of work, being one of a class of stevedores ready tо respond when called.’ ’
The court held that the employment was not casual, within the meaning of the New Jersey statute. The court further said:
"The ordinary meaning of the word ‘casual’ is something which happens by chance, and an employment is not casual,— that is, arising through accident or chance, — where one is еm-. ployed to do a particular part of a service recurring somewhat regularly, with the fair expectation of its continuance for a reasonable period. ’ ’
Dyer v. Black Mas. & Con. Co.,
“There was an element of certainty in thе work, recurring at times which, though they could not be fixed definitely, yet were fixed generally by the agreement to look after and assist in unloading the glass as it arrived, from time to time. ’ ’
This case is clearly distinguishable from the case at bar.
App’ellant relies on Holmen Creamery Assn. v. Industrial Com.,
“Hence, an employment that is only occasional, or comes at certain 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.”
Appellant cites Consumers Mut. Oil Prod. Co. v. Industrial Com.,
“Where the emplojunent for one job cannot be characterized as permanent or periodically regular, but occurs by chance, or with the intention and understanding on the part of both employer and employee that it shall not be continuous, it is casual. * * * The work he was to assist in doing was a particular and certain piece of work, which both he and his еmployer knew would require but a short time. There was nothing in the contract of employment nor in the relations of these parties, then or prior to that time, shown by the evidence which would indicate that such employment was to be either continuous or recurring. ’ ’
We approve this declaration, and apply it to the instant case.
Other cases cited by counsel for appellant have been examined by us, but are not determinative of the question involved. We are clearly of the opinion that the decedent, under the circumstances disclosed in this record, was engaged in an employment that was casual, and that there was no liability under the Workmen’s Compensation Act. The finding of the industrial commissioner and of the district court was correct.
In view of our holding on this question, it is unnecessary for us to pass on other matters argued by counsel. It follows that the judgment of the district court must be, and the same is, —Affirmed.