White's Case

124 Me. 343 | Me. | 1925

Deasy, J.

Under the Workmen’s Compensation Law an employer engaged in more than one kind of business, may become an assenting employer as to all. or any. In assenting he must.specify the business or businesses “concerning which he desires to come under the provisions” of the law. Public Acts of 1919, Chap. 238, Sec. 3.

In the instant case the employer carried on a saw mill business and to provide logs for the mill conducted, about four miles from the mill, a woods operation. While employed as a chopper in the woods, the petitioners husband accidentally sustained a fatal injury.

An employer, circumstanced as was the defendant, may become an assenting employer as to the mill without assenting as to the logging operation. Paper Co. v. Thayer, 122 Maine, 201. Or he may become an assenting employer as to both operations. It is only necessary for him to make his meaning clear in simple English language.

In the defendant’s assent his business is described thus: ‘ ‘Location of business (in Maine) Mill located in E. Plantation, Robinson and elsewhere in Maine. Kind of business included in assent, Long lumber.”

The defendants contend that by the language above quoted they in effect specified the sawing of lumber at the mill as the “business concerning which they desired to come'under the (Laws) provisions” and impliedly excluded the cutting and hauling of logs.

They argue that the use of the word “mill” fixes the location of the business included in their assent. This depends upon whether the phrase “and elsewhere in Maine” refers to and qualifies the word “mill” or the words “location of business.” The language used may mean “a mill located in E. Plantation or (located) elsewhere.” But it is equally susceptible of the meaning — “a business carried on at the mill and elsewhere.’’

Technical language is' not required. 28 R. C. L., 735. But the meaning should be made reasonably clear. The language is that of the employers and being ambiguous must be taken most strongly against them. 6 R. C. L., 854.

But the employers urge further that in stating the kind of business to be “long lumber” they impliedly specified the manufacturing of long lumber at a mill as the business covered by their assent.

The word lumber has two well recognized meanings. Its more precise and restricted meaning is as the, defendants claim, manufactured lumber. But it is also used as meaning logs. In common parlance, cutting and hauling logs in the woods is called “lumbering.”

In the defendant’s petition for decree in this case the phrase “lumbering operation” is used three times in describing the business in connection with which the petitioner’s husband was employed. In the language of legislation the term lumber includes logs: “Logs or other lumber” R. S., Chap. 78, Sec. 1 and Chap. 129, Sec. 14.

“The statutes of the. state recognize different kinds of lumber— There are logs, masts, spars and other lumber.”

Appleton, C. J., in Haynes v. Hayward, 40 Maine, 147.

“The word lumber.in its broadest sense includes both the manufactured and unmanufactured product.”

Cornish, J., in Mitchell v. Page, 107 Maine, 390.

In view of these authorities we cannot say that necessarily and as a matter of law the word “lumber” (wen when qualified by the word “long” signifies a mill operation only, and excludes the cutting and hauling of logs.

As reinforcing his argument the petitioner’s counsel calls attention to a clause in the defendant’s approved insurance policy reading thus: “The employer is conducting no other business operations at this or any other location not herein disclosed — except as herein stated.” No exception is set forth.

It is urged that whatever they may now say, the defendants in filing this policy with their assent must have then regarded the woods work as a part of their mill business. But the defendant’s counsel says that within the purview of the statute a lumbeVing operation is not a business. IIis clients seem to think otherwise. In answer to a question O. B. Robinson, one of the defendants, says: “The logging business ends at the landing.” Mr. Robinson used the word business correctly. If. fairly includes a lumbering operation.

Counsel for the defendant also relies upon the policy as sustaining his contention. Under the heading “Classification of Operations” are the words “Portable Saw Mill.” The business is not otherwise described in the policy. It is argued that the operation of a portable saw mill cannot be held to include logging. True perhaps if unqualified. But as explained and qualified by paragraph six of the policy the term may well be held to include a logging operation conducted for the purpose of supplying logs for the mill.

Paragraph six: — “This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined- and described in said Declarations or elsewhere in connection with, or in relation to, such work places.”

If logging was not a part of the mill business it was incident to and connected with it. Durand’s Case, 124 Maine, 59.

Our attention has been called to two cases decided by this court wherein a mill owner’s assent was held not to cover the cutting and hauling of logs.

Fournier’s Case, 120 Maine, 191.

In this case the location of the business was stated to be “Milford and Oldtown Maine.” Held not to .cover a logging operation at a distant place in another County.

Cormier’s Case, 124 Maine, 237.

The kind of business was stated to be “Veneer Mfg.” The policy filed with the assent reads — “This policy does not cover woods operations.”

The wide distinction betweeen these cases and that now under consideration is obvious.

Appeal dismissed.

Decree affirmed.