This wаs an action under the workmen’s compensation law. An award was granted to the employee, G-askill, both at the hearing before the compensation commissioner, and also in the proceeding, later instituted, in the district court. From the decree in the district court, the employer, Kaplan, appeals.
The evidence in behalf of the employee is to the effect that Ivaplan, the employer, was engaged in the business of buying and selling junk and dealing in second-hand automobiles, and that he owned two or three houses and a small store building. His wife also owned one residence property. All of these properties, except one house, in which Kaplan and his wife lived, were occupied by tenants. In the middle of April, 1921, Mr. Kaplan employed Gaskill to work for him. He told Gaskill that he had some repair work and remodeling, to do on the store building, and that he intended, later, tо build or repair-a fence, build some additional garages, and, should he be able to purchase a certain lot, expected to erect another store building. It was contemplated that the work which they were to immediately enter upon on the store building, being remodeling and repair work, would last ten days or two weeks. Mr. Gaskill, who was otherwise employed, in the еarly mornings, as a janitor, the testimony in his behalf shows, agreed to work for Kaplan at 75 cents an hour, seven and one-half hours a day and five days a week; Mr. Kaplan not desiring work done for him on Saturday, as that was the day which he observed as the Sabbath. Gaskill began work immediately, on April 19, and the work on the store building was practically completed on'the 2d of May. On that day Kaplan asked that Gaskill should return the next day and assist in moving an ice box, saying that he wished Gaskill to bring some crowbars, and that he would call for bim the next morning with his truck. The next morning they met, as arranged, and drove to the store building. The work of moving the refrigerator and of repairing damage to the floor, which occurred as a result of that work,, lasted until noon. During that work, a splinter entered Gаskill’s thumb. An infection later followed and caused a permanent injury.
The two legal defenses, that the employee was engaged in casual employment and was acting outside of the usual course of the business of his employer, are, under the statute as it stood prior to the 1921 amendment, defenses which are distinct and independent of one another, and must be considered separаtely. Petrow & Giannou v. Shewan, p. 166, post.
It does not appear that the employment was casual. That question is to be determined largely from the contract entered into between the parties. Western Union Telegraph Co. v. Hickman,
Thе decisions of this court and of other courts, under circumstances where the employment is one which is contemplated to continue, as it does in this case, have held such employments to be regular, and not casual. Nedela v. Mares Auto Co.,
The next question presented is whether or not the employment was in the usual course of the regular trade, business, profession, occupation or vocation of such employer. The statute provides that the act “shall apply * * * to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer” (Laws 1917, ch. 85, sec. 1), and further provides that the act “shall not be construed to include any person whose employment * * - is not in the usual сourse of the trade, business, profession or occupation of his employer” (Laws 1917, ch. 85, sec. 4, subd. 3).
It is argued that the act must be given a liberal construction, and to this we readily accede. But, as said in Ray v. School District of Lincoln,
The act by its terms is confined to employees in the various kinds of business occupations, whenever such employees are engaged in performing the usual sendees pertaining to that particular business or vocation.
The fact that the employer, in this instance, was engaged in the business of buying and selling junk and in dealing in second-hand automobiles has no controlling influence upon the question .of Avhether or not he was engaged in the regular business or vocation of renting houses.
In the case of Marsh v. Groner, 258 Pa. St. 473, L. R. A. 1918F, 213, the court, referring to the meaning of the word “business,” as used in the workmen’s compensation law in that state, said (p. 477) :
“What gives rise to the question is the indefiniteness and want of precision of meaning of the word ‘business’ as it occurs in the act. It is a word which embraces a wide variety of subjects, and being without a technical or precise meaning, excluding any other, it may convey an еntirely different meaning in one connection from what it imports when used in another. In such cases when, as here, no help can be derived from the context, and none from the use of the same word in other sections of the act, the interpreter has no other recourse than to the presumption that the word was used in the popular sense, if that be found agreeable, that is, not contradictory to the object and intention of the lawmaker.
“Statutes are presumed to employ words in their popular sense, and when the words used are susceptible of more than one meaning, the popular meaning will prevail. Where the meaning involves no absurdity and is not in conflict with the other parts of the act, it is the only one that can be рresumed to have been intended and there is no room for construction. Cooley, Constitutional Limitations, p. 68. There are few words more current in our speech than the word ‘business’ ;■ few that include a greater variety of subjects and yet none which, in popular speech, has greater or more marked singleness in denotement. When one’s business is the subject of common sрeech, no one can be in doubt as to the reference. It would be a very exceptional person — we do not know how to otherwise describe him — who would not understand that the reference*462 is to the habitual or regular occupation that the party was engaged in with a view to winning a livelihood or some gain. These objects are necessarily implied when one’s business is spoken of. * * * What we have said as to the popular understanding of the word ‘business’ is just what Webster defines it: ‘Some particular occupation or employment habitually engaged in for livelihood or gain.’ ”
Merely holding property and keeping it in order, though it is rented to another and renders an income, can hardly be said, without straining the meaning of the term, to constitute a regular business on the part of the owner. There are different characters of properties which are income-producing and which need more or less care and attention in their handling, and yet the mere holding of them, which does not require a substantial or continuous or habitual rendition of service, can hardly be said to constitute a business, as that term is used in the statute. Though the holding of a single property and renting it to another, so as to derive an income therefrom, would not constitute a business, still it is conceivable that a person may be so engaged in acquiring and holding numerous properties that the service required in handling and caring for them may become so substantial as to amount to a regular business.
Our compensation laws in this country have, to a large degree, been patterned after the compensation laws in England. There it is held that the maintaining and renting, of several residence properties cannot be held to be a business within the contemplation of the compensation law. In the case of Bargewell v. Daniel, 98 L. T. R. (Eng.) 257, a woman managed eight houses. She owned five of them and for managing the other three received half of the rent. She had no regular business or vocation and supported herself on the income from these properties thus derived. She employed a person to mend the roof of one of the houses and in performing that work he was injured. It. was conceded that he was a casual employee, but, under
In the case of State v. District Court,
In a similar case, Oliphant v. Hawhinson, supra, the defendant was a retired farmer and had rented his farm to a tenant, who occupied and operated it. Defendant employed a carpenter to build a new corn-crib upon the premises. It was held that the carpenter so employed was not engaged in any trade or business of the employer, the court saying that the defendant “had no trade or business within the meaning of this act. Because he owned the farm and leased it did not bring him within the class contemplated by this statute as an employer.”
In the case of Lousier v. Industrial Accident Commission,
It cannot be questioned that a person who is employed to repair or remodel the family residence of another is not, in that employment, engaged in the usual course of any regular business or occupation of the employer, within the meaning of those terms as used in such acts. See Marsh v.
The purport of the decisions, above discussed, is that the mere owning of a house, maintaining it and keeping it in repair and renting it, so that it may produce an income, is not sufficient to constitute a business; nor does the fact that a person owns and rents more than one house necessarily constitute a business, but such transactions at most could only amount to a regular business, within the meaning of the law, when they are carried on to such an extent as to require a substantial and habitual devotion of time and labor to their management and operation. In the case of Davis v. Industrial Commission,
In the case before us Kaplan оwned a small store building and two or three houses. His wife owned a residence, and in one of these residences — it does not appear in which — the defendant and his wife resided. The fact that Kaplan kept these properties in repair, and the fact that he rented them, so that they might produce an income, does not, to our mind, show that he was so engaged in the аcquiring and renting of properties, and in the furnishing or performance of labor in respect to them, as to be considered engaged in a regular business in that connection, within the meaning of the terms as used in the workmen’s compensation law. His time was substantially employed in the business of handling junk and dealing in secondhand automobiles, and what he did with regard to the handling of and caring for the several private properties was purely incidental to his investment, and not sufficient in extent to constitute a regular business.
It is therefore' our conclusion that the judgment of the
Reversed and dismissed.