Lackey v. Industrial Commission , 80 Colo. 112 ( 1926 )

Mr. Justice Denison

delivered the opinión of the court.

The case comes here from the district court of Otero county, which affirmed awards of the Industrial Commission in favor of Jacks and Lawlor against Lackey for injuries received by the claimants while in the employ of Lackey.

We can find no substantial controversy in the evidence. Lackey was a farmer and made up his mind to build and operate a filling station in the town of Fowler. He procured a site for the purpose and employed men by the day to prepare the ground "by pulling down a building and to put up a filling station thereon. This was accomplished, and he went into the business o£ the filling station and continued it thereafter up to the time of the hearings in these matters. Jacks was hurt while pulling down the old building; Lawlor while putting up the filling station. More than four men were employed by Lackey about this business when each accident took place. By S. L. 1923, page 751, § 9, paragraph (b), “The term employe shall mean and include * * * Every person in the service of any other person, * * # under any contract of hire, express or implied, * * * but not including any persons * * * whose employment is but casual and not in the usual course of trade, business, profession, or occupation of his employer.” The position of the plaintiff in error is that the employment of each of these claimants was casual and not in the usual course of trade, etc., of himself, their employer, and that therefore they were not employees within the terms of the act. Jacks was employed by the day, not exceeding six days in all. When he left Lackey would téll him when to come back. Casual is an antonym, of regular. Jack’s employment was irregular and therefore casual. Lawlor was employed to relay some cement floor or driveway, to be paid by the day. When hurt he was helping to lay shingles because rain prevented work on the cement job. By no process of reasoning can he be called a regular employee.

But even though casual, if the employe is engaged in the usual trade, business, etc., of his employer, he still is an employe within the meaning of the act. Was the preparation of the ground and the erection of the building for a filling station within this category? It is not claimed that it was farming. It is clear enough that if Lackey had been merely constructing the building without intention to use it in a new business the construction would not have been in the usual course of his trade or business. The real question then is: Is the construction of a building to be used by the builder in a business new to him, within the usual course of that business? The defendants in error on this point cite State ex rel. Lundgren v. District Court, 141 Minn. 83, 169 N. W. 488, as parallel, but we do not think so. In that case the “employer was engaged in the lumber and building material trade, and for the purpose of adding thereto a line.of fuel, constructed a shed in which to keep and store the new stock. * * * While the defendant was not a building contractor, nor engaged in specific work of that kind, the construction of the shed in question was in furtherance of its established business, a necessary part thereof, and we discover no sufficient reason for holding that it was outside of and beyond what is customary and usual in a situation of the kind. That should be the test in construing the statute.”

It will be observed that the decision is based upon the proposition that the work in which the claimant was hurt was in furtherance of an established business, that is in furtherance of a usual business. The usual business of the firm was merchandising and they added a new kind of merchandise. It would have been a case parallel to the one before us if the employers there had decided in addition to their merchandising business to establish a manufacturing plant or something not connected with their merchandise some miles away, or let us say a filling station. We could scarcely say that the filling station was in the usual course of their business of merchandising. Then even should we agree with it, that case does not help us.

We do not think that the erection of a building can be said to be within the usual course of a business to be carried on in that building unless, perhaps, such business be the business of building and the structure be erected in the course of that business. Suppose a building contractor resolves to go into the hotel business, and for that purpose erects the hotel himself. The erection of that hotel may be in the usual course of his business as building contractor but how can it be said that it is in the usual course of his business as a hotel keeper? He is an innkeeper when he opens his house for guests, not before. He is a filling station keeper when he opens his place to fill, not before. Illustrations and analogies might be multiplied without end. We must say that neither the preparation for the erection of a building for the filling station nor the erection of it was within the usual course of business of farming or keeping a filling station.

It is claimed that there is a question of fact here which the commission has decided. We do not think so. We think the facts are unquestioned and that the only question is one of law, namely, what is the proper construction of the word “casual” and the words “usual course of trade.”

The judgments are reversed with directions to the district court to set aside the awards of the commission.

Mr. Chief Justice Allen and Mr. Justice Whitford concur.