243 P. 593 | Wyo. | 1926
This is an appeal from an order of award under the Workmen's Compensation Law. The appellant, Alex Ocenas, on September 12, 1924, was engaged in moving a house at Hudson, Wyoming. The work was being done under a contract whereby Ocenas was to receive $150 for moving the house some six or eight blocks. It was planned to have the house pulled by two gasoline tractors, one of which was driven by Frank Karos, the injured workman. When the tractors were attached to the house and started forward the load proved to be too great, the house did not move, and the tractor driven by Karos reared and fell backward. The workman was caught beneath the tractor and injured. If he was entitled to compensation, the amount thereof as fixed by the award is not questioned.
The tractor driven by Karos had been borrowed from the owner, Bossik. It is claimed that Karos was not the employee of Ocenas but of Bossik. Ocenas testified that when he borrowed the tractor, Bossik insisted that Karos drive it; that he (Ocenas) did not employ Karos, but agreed to pay Bossik both for the use of the tractor and for Karos' services in driving it. We need not say whether this testimony, if undisputed, would have justified a finding that Karos was not the employee of Ocenas at the time of the accident. See Famous Players Lasky Corp. v. Ind. Acc. Com. (Calif.)
The employer testified that he was a plasterer and mason, and not engaged regularly in the business of moving houses. There was no evidence that he ever contracted or undertook to move any other house. The time required to move the house was not shown at the hearing, but it may be assumed that it would not have taken long — probably a day or two. It is contended that a single act of moving a house is not an occupation or business covered by the Workmen's Compensation Law.
That law from the first has classed "buildings being constructed repaired, moved or demolished" as an extra-hazardous occupation when "conducted for the purpose of business, trade or gain." Sec. 4318, Wyo. C.S. 1920. It is undisputed that the employer in this case was engaged in moving a building, an extra-hazardous occupation, and that he was doing it for the purpose of gain. It would seem, therefore, that the moving of the house was an occupation controlled by the law unless excepted because the employer was engaged in that occupation but a short time.
Section 4318, supra, as it read in the original act, provided that the act should apply only to employers by whom five or more workmen had been employed continuously for more than one month at the time of the accident. Sec. 4, c. 124, L. 1915. The legislature of 1917 made the law applicable to employers who had employed three or more workmen for one month. Sec. 1, c. 69, L. 1917. The next legislature made it applicable to employers by whom "workmen have been employed continuously for more than one month at the time of the accident." Sec. 1, c. 117, L. 1919; Sec. 4318, W.C.S. 1920. The legislature of 1921 dropped from the law all reference to the number of men employed or the time of their employment. Sec. 1, *361 c. 138, L. 1921. It is unnecessary to comment on the significance of these changes which, after the amendment of 1921, left nothing in the law to show an intention that an employer should be excepted from its control merely because he was not engaged regularly in the hazardous occupation, or because the occupation was pursued for only a short time. We conclude, therefore, that the moving of the building was an occupation controlled by the compensation law.
The law defines a workman as "any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business." Sec. 4321, C.S. 1920. It is contended that the workman in this case falls within the exception.
Almost every Workman's Compensation Law contains some provision excepting workmen whose employment is casual, but the provisions differ materially both in phrasing and meaning. A general classification of such provisions is made in Miller v. Granite etc. Co.,
In examining the exception as contained in our law, we notice, first, that the casual nature of the employment does not leave the workman outside the law unless it appears *362
also that the employment was not for the purpose of the employer's trade or business. It may be conceded that the workman's employment in this case was purely casual. We have already said that the employer while moving the building was engaged in an occupation within the act, and it must follow that that occupation for the time was his "trade or business" within the meaning of section 4321. The workman's employment, though casual, was for the purpose of that trade or business, and he does not fall within the exception. It is to be emphasized that in this case the building was being moved by the employer for gain, as an independent undertaking, and not as an incident to some other business. In some or all these respects the case differs and is readily distinguishable from those cases, a few of which we cite, in which a casual workman has been held not to have been employed for the purpose of his employer's trade or business. Alderman v. Warren, 9 B.W.C.C. 507; Blake v. Wilson,
The employer alleged that the injury was due solely to the culpable negligence of the injured workman. On that issue the burden of proof was on the employer. Hotelling v. Fargo-Western Oil Co. (Wyo.)
The order of the district court will be affirmed.
Affirmed.
POTTER, Ch. J., and BLUME, J., concur.