Chamberlain v. Central Vermont Railway Co.

The record shows the facts found by the commissioner of industries, and his order awarding compensation in favor of the claimant. It further shows that after said findings and order were filed, and the defendant proposed to take an appeal therefrom, the parties by their attorneys of record, agreed in writing filed in the case, that a transcript of all the evidence and proceedings in said matters before the commissioner, certified by the stenographer who took the same, "shall be treated as a part of said findings of fact and order, and shall be treated by the Supreme Court as a part of the record on appeal." After this was filed the appeal was taken, which states that the "appellant claims that as matter of law, neither said findings of fact nor said order is warranted by the evidence."

One reason given in appellant's brief why the grounds set forth in the appeal should be sustained, is that the claimant's employment at the time of his injury was "purely casual," and consequently he was not an "employee," or "workman" (terms synonymously used) within the meaning of the Workmen's Compensation Act. This involves the jurisdiction of the commissioner of industries, for if the claimant was not an "employee" within the meaning of that act, the case did not come under the provisions of that statute. It would necessarily follow from such circumstances that the commissioner was without original jurisdiction of the subject-matter, and if he had no such jurisdiction, this Court has no jurisdiction on appeal.Mathewson v. Mathewson, 81 Vt. 173, 69 A. 646, 18 L.R.A. (N.S.) 300; Barton v. Sutton, 93 Vt. 102, 106 A. 583.

While findings of fact by the commissioner in such proceedings are ordinarily binding upon this Court, if legally supported by evidence (Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50,113 A. 818), yet an exception to this is made where as here the question of the commissioner's jurisdiction is involved, and a certified copy of all the evidence before him is made a part of the record on appeal. In these circumstances the court will examine the evidence in determining the question of his jurisdiction. Thede Bros. v. Industrial Commission, 285 Ill. 483,121 N.E. 172; Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N.E. 767.

In the instant case, only two witnesses (the claimant and his direct employer, Cassius Hurlburt) were used at the hearing before the commissioner, and their testimony, now a part of the record before us, was all the evidence introduced by either party at that hearing. The evidence thus given was short, and without conflict therein. The claimant, testifying in his own behalf, stated that he lived in the town of Cambridge; that in August, 1926, he was working for Cassius Hurlburt who, at that time, was sawing wood and putting it on the cars; that it was four-foot wood, and he "was handling it on to the saw"; that on August 17, while working under such employment, he received an injury, "two fingers were cut off, the first and middle fingers"; that when so working he was getting four dollars a day for his services; that for twelve weeks prior to the time of his injury he was working on his farm. In cross-examination he testified that he was injured the second day he worked; that his business was that of a farmer, lived on a farm and owned it; that his farm has about three hundred acres, and he had forty-five or fifty head of stock. "Q. You were sawing this wood as a sort of casual employment? A. I went because Mr. Hurlburt came and asked me to help him."

Hurlburt testified that he lived in the town of Cambridge; that in August, 1926, he had a contract with the Central Vermont Railway Company, whereby he took a job of the company to saw 160 cords of wood and put it aboard the train at $1.75 per cord; that during the week of August 17, Chamberlain (claimant) worked for him, for which witness was to pay him four dollars per day; that on the second day of working, Chamberlain had an accident, cutting off two fingers on the saw, etc.

The foregoing was all the evidence in the case bearing on the question of claimant's contract with Hurlburt, under which he was working at the time of his injury, and whether his employment was "purely casual," or otherwise.

In the respect particularly under discussion, the Workmen's Compensation Act of this State is essentially like that of the States of Massachusetts, Illinois, Michigan, West Virginia, Iowa (as it now is), and some others not here mentioned. It is of more than usual importance to notice such likeness and the construction given in those states, because of the express requirements of the statute of this State against strict construction, and that its provisions "shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it."

By G.L. 5758, subsection II, "workman" and "employee" are defined "to mean a person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer, but not to include a person whose employment is purely casual or not for the purpose of the employer's trade or business," etc. The concluding part of this quotation beginning with the word "but" is an exception to the general description of persons in the preceding part, designated as "workman" and "employee." As this part of the excepting clause contains the disjunctive "or," if the claimant was within either condition there specified, he was not an "employee" within the meaning of that act, and so not in its scope of operation.

In determining whether, in the instant case, the employment was "purely casual" the contract for service is the thing to be analyzed. Gaynor's Case, 217 Mass. 86, 104 N.E. 339, L.R.A. 1916A, 363; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142,115 N.E. 207; Western Union Tel. Co. v. Hickman (W.Va. statute), 248 Fed. 899, 161 C.C.A. 17; Callihan v. Montgomery, 272 Pa. 56,115 A. 889.

The exception in the Iowa compensation statute (Code 1924, § 1421 [a]), like that in our statute, uses the words "purely casual," but in more states the words so used are "but casual," and in some "casual employee" or "casual employment." Yet they are all of the same class, equivalent in meaning, and relate to the contract of service. There is another class, patterned after the English Act, in which the exception is of persons whose employment is "of a casual nature" or words to that effect. In the latter class the determinative point is held to be, not the contract of service, but the nature of the service rendered. Of this class are the statutes of several states, including Rhode Island and Connecticut. See Thompson v. Twiss, 90 Conn. 444,97 A. 328, L.R.A. 1916E, 506.

It is generally held in those jurisdictions where statutes of this character obtain, having an exception substantially like the one under consideration, that the word "casual" as therein used, should receive its ordinary, common meaning. This, according to one definition given in Webster's New Int. Dict., is "coming without regularity; occasional; incidental"; — thus distinguishing from that which is "regular, systematic, periodic, and certain."

Adverting to the evidence and inferences fairly to be drawn therefrom, we have seen that there was no controversy as to the facts. It uncontrovertably appears that the claimant, whose business was that of a farmer, was, at the time of his injury, under employment by Hurlburt, an independent contractor, to help him in doing work he had contracted with defendant company to do, by way of sawing the wood mentioned and putting the same on board cars at a stipulated price per cord. How the claimant happened to be working under such employment is shown by his own testimony where he says, "I went because Mr. Hurlburt came and asked me to help him." Compensation for his services was to be a specified sum per day. On the second day of working there, and in performing the work of his employment, he received the injury stated. There was nothing before the commissioner indicating how long the sawing job was likely to last, nor that claimant was employed to work for any definite time, or until it was finished. There was no evidence tending to show that he was under obligation to continue such work any longer than he should choose, which at longest could be only until the completion of the job. Certainly that one job cannot be considered as permanent, nor as something which would recur at the end of regular periods or ever. And both Hurlburt and the claimant must have understood that the latter's said employment could not, in the nature of things, be continuous. In Consumers' Mut. OilProduction Co. v. Industrial Commission, 289 Ill. 423,124 N.E. 608, it appeared that while the employer, an Oil Producing Company, was having the assistance of the employee in the repair of a pump jack used in the pumping of crude oil by the company, the employee was injured; that there was no definite time fixed for the employment, other than the statement of the manager of the employer's business to the employee at the time of the employment, that it would probably be three or four weeks, and may be longer. The only question presented by the record was whether or not the employment of the employee at the time of the injury was but casual. The court said: "While each case must be largely decided upon its own facts, we believe the Legislature intended that, where one is employed to do a particular kind of work, which employment recurs with regularity, and where there is a reasonable ground that such recurrence will continue for a reasonable period of time, such employment is not casual. On the other hand, where the employment 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 rule here quoted was applied to that case, the holding being that the employment was casual, the court further saying in that connection — we quote it because of the great similarity in circumstance to the case at bar — "The work he was to assist in doing was a particular and certain piece of work, which both he and his employer knew would require but a short time. There was nothing in the contract of employment nor in the relation 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." The reasoning and conclusion in that case on the question of casual employment, was closely followed by the same court in the later case of Charles A. Smith Co. v.Industrial Commission, 299 Ill. 377, 132 N.E. 470. Other cases involving the same general question, with like holdings, are the following: Gaynor's Case, supra; Cheever's Case, 219 Mass. 244,106 N.E. 861; King's Case, 220 Mass. 290, 107 N.E. 959; WesternUnion Tel. Co. v. Hickman, supra; Herbig v. Walton Auto Co.,191 Iowa, 394, 182 N.W. 204; Porter v. Mapleton Electric Light Co.,191 Iowa, 1031, 183 N.W. 803; Pooler's Case, 122 Me. 11,118 A. 590; Cousineau v. Black, 206 Mich. 479, 173 N.W. 203.

We think it clear that the employment of the claimant was purely casual at the time of his injury and that he was not an "employee," within the meaning of the Workmen's Compensation Act. This being so, the alternative condition in the exception is immaterial and not considered. It follows that the commissioner of industries was without jurisdiction of the subject-matter, and that his award is without authority in law and void.

The same result was reached on the alternative condition in the exception, in Packett v. Moretown Creamery Co., 91 Vt. 97,99 A. 638, L.R.A. 1918F, 173, and in Wlock v. Fort Dummer Mills,98 Vt. 449, 129 A. 311, recently decided, where the plaintiff, a minor, was held to have been employed in defendant's mill in violation of the statute regulating child labor, and that since she "was not an ``employee' within the true intent and meaning of the Workmen's Compensation Act, she was not subject to the provisions thereof, nor was the remedy there provided applicable in seeking damages for the injuries suffered." And it was further there held that the rule of liberal construction does not extend "the provisions of a statute to purposes and objects outside of and beyond those mentioned by it."

Order vacated, award set aside and claim dismissed with costs.Let the judgment be certified to the commissioner of industries.