A finding that employment was casual within the meaning of the Texas Act remits both employer and employee to their com mon-law rights.53

A man aiding movers on a pick up job, knowing the employment to be only for one particular moving job, is a casual employee.54

55

A structural iron worker employed for a particular job only, requiring three or four days was engaged in casual employment.5 In a recent Illinois case the court said, "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 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," and held that where it was understood the employment was only for three or four weeks, the servant, while injured during the course of such work was a casual employee !56

It was held that one not on the payroll, but permitted to sleep and remain about a livery barn and occasionally do small jobs for which he was immediately paid was a casual employee."

Where a man was hired to repair a well at $1 an hour and the work consumed only two hours, he was held to be a casual employee.58

53. Texas Refining Co. v. Alexander,-Texas Civ. App, 202 S. W. 131, 17 N. C. C. A. 535; Bridger v. Lincoln Feed & Fuel Co., Neb. - (1920), 179 N. W. 1020, 7 W. C. L. J. 211.

54. Thede Bros. v. Ind. Comm., 258 Ill., 483, 121 N. E. 172, 3 W. C. L. J. 242, 18 N. C. C. A. 133.

55. Chicago Great Western R. Co. v. Ind. Comm. of Ill., 284 Ill. 573, 120 N. E. 508, 3 W. C. L. J. 14, 18 N. C. C. A. 132.

56. Consumer's Mut. Oil, Producing Co. v. Ind. Com'n. et al., 289 Ill. 423, 124 N. E. 608, 5 W. C. L. J. 31; Utah Copper Co. v. Indus. Comm. of Utah, Utah (1920), 193 Pac. 24, 7 W. C. L. J. 147; Herberg v. Ia. (1920), 182 N. E. 204.

Walton Auto Co.,

57. Diamond Livery v. Indus. Com., 289 Ill. 591, 124 N. E. 609, 5 W. C. L. J. 33.

58.

Otmer v. Perry, 94 N. J. 4, 108 Atl. 369, 5 W. C. L. J. 423.

Where blasting was required for only a few hours in the construction of a new road, such employment was held to be casual.59

A carpenter, engaged in the construction of a house, for a corporation owning a ranch, is engaged in the usual course of the business of the employer as the business includes the construction and repair of its buildings.60

The employment of an eleven-year-old boy to work in a store during the summer and to run errands for his employer, is not casual employment within the meaning of the statute, which does not include within this term employments for a definite time, as for a week, a month or longer."1

The claimant need not prove that the employment was not casual, as casual employment is an affirmative defense, to be proved by the employer."2

After completing a job of roofing and having started on another job for a different employer, an employee told the first employer that the chimney needed a little work done on it, and that if the employer would furnish the cement he would do the work free of charge. It was held that the work of repairing the chimney was casual.63

One who was employed by a New York Boiler Company for 15 years in setting up boilers in various states, was not engaged in casual employment while working within the state of Maine so as to preclude the application of the Maine Act.64

A miner loaned to another employer according to a custom, for the purpose of fighting fire in a mine, was under the latter's control, and entitled to compensation. The court said: "The facts found by the referee justify the award. A master may loan his

59. McLaughlin v. Ind. Board, 281 Ill. 100, 117 N. E. 819, 15 N. C. C. A. 803.

60. Miller v. Comm., 32 Cal. App. 250, 162 Pac. 651.

61. McDonald v. Great Atlantic & Pacific Tea Co.. Conn. 111, Atl. 65, 6 W. C. L. J. 525.

- (1920),

Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E.

62.

173.

servant, with the latter's consent, to another under such circumstances as to create for the time a new relation of master and servant; the regular servant of one may thus for the time being become the special servant of another, and that was done here.

"Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent although he remains the general servant of the person who lent him. The test is whether, in the particular service which he is engaged to perform, he continues subject to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.' Puhlman v. Excelsior E. & S. C. Co., 259 Pa. 393, 103 Atl. 218, L. R. A. 1918E, 118; 26 Cyc. 1285; Bailey on Personal Injuries (2d Ed.), c. 3, Par. 25. And see Crouse et al. v. Lubin, 260 Pa. 329, 103 Atl. 725.

"The deceased when injured was working in the interest of the defendant on its premises and under its control, and clearly, for the time being, its servant. That his wages had not been fixed is unimportant: the law will imply a reasonable compensation. The finding of a temporary employment by defendant is not inconsistent with the finding of a general employment by the Fick Coke Company, and being one of fact we are concluded thereby. Gallagher v. Walton Mfg. Co., 264 Pa. 29, 107 Atl. 327; Belmonte v. Connor, 263 Pa. 470, 106 Atl. 787; Messer v. Manufacturers' L. & H. Co., 263 Pa. 5, 106 Atl. 85.

"Persons whose employment is casual in character and not in the regular course of the business of the employer are excluded from the Workmen's Compensation Act (article 1, Par. 104, P. L. 1915, p. 736); but we cannot adopt the suggestion that this case comes within the exception. Putting out mine fires is as much in the regular course of the business as clearing passage ways or pumping water. There are two necessary elements to constitute the exception: (1) The employment must be casual in character, and (2) it must be outside of the regular course of the business of the employer. As we find this within such course. it is not necessary to determne whether the employment was casual in character or otherwise. This statute must be liberally construed (Pater v. Superior Steel Co., 263 Pa. 244, 106 Atl. 202), which

it would not be by holding that the extinguishment of fire in a coal mine was a work outside of the regular course of the mining business. Being overcome by noxious gases while working in a mine is an 'accident' within the Workmen's Compensation Law. Gurski v. Susquehanna Coal Co., 262 Pa. 1, 104 Atl. 801."' 65

Where there was a contract for a fixed rate and to continue so long and for all the work that the employer had to do, the employment was not casual.66

An employee, unloading cars of coal at 25 cents a ton at irregular intervals under a separate employment for the unloading of each particular car, is a casual employee and not entitled to compensation under the Nebraska Act.67

§ 30. Employments not Casual.-A woodman who had been trimming trees for two months and had done this for the same employer for a number of seasons was not engaged in casual employment.68

Where one is employed to do a particular service occuring somewhat regularly and with a fair expectation of its continuance for a reasonable period, his employment is not casual.69

A farmer and teamster engaged by a canning factory to do haul. ing at such times as he might be needed during the season at a certain rate of pay, the hauling being a necessary part of the employer's business, was not a casual employee, since the question of who is a casual employee must be determined with principal reference to the scope and purpose of the hiring, rather than

68. Smith v. Buxton, (1915), 8 B. W. C. C. 196; 11 N. C. C. A. 383; Tombs v. Bomford, W. C. Rep. 229, 106 L. T. N.

S. 823, 5 B. W. C. C. 338.

69. Dyer v. James Black Masonry etc., Co., 192 Mich. 400, 158 N. W. 959; Sabella v. Brazilierio, 86 N. J. L. 505, 91 A. 1032; Jordan v. Weinman, 167 Wis. 474, 167 N. W. 810, 2 W. C. L. J. 417; Boyle v. Mahoney & Tierney, 92 Conn. 404, 103 Atl. 127, 1 W. C. L. J.. 937, 18 N. C. C. A. 134.

70

with sole regard to the duration and regularity of the service." A longshoreman, called frequently to serve a firm of ship owners in unloading their ship, was not in casual employment. The court said: "While this class of work was not constant, depending on there being a ship of the prosecutor in port, it appears that the deceased was frequently called upon by the prosecutors to serve them in this particular character of work, being one of a class of stevedores, ready to respond when called. We think this supports the finding that the employment was not 'casual' within the meaning of the word as expressed in the statute.

9971

One employed on a sawmill, on such a day as it operated during a period of four months was not a casual employee.72

One employed for an indefinite period at a stipulated sum per day to work on a contract, for the erection of a structural steel building, could not be considered in casual employment.73

Piece work in the employer's regular business is not ordinarily considered casual; nor is emploment casual because it is not for any specified length of time,75 or for one job, or or that the deceased was injured the first day.

76

In California and Connecticut an arbitrary rule has been established to the effect that employment of less than ten days is casual

70.

State Accident Fund v. Jacobs, 134 Md. 133, 106 Atl. 255, 4 W. C. L. J. 91; Uphoff v. Ind. Bd. of Ill., 271 Ill. 312, 111 N. E. 128.

71. Sabella v. Brazilierio, 86 N. J. L. 505, 91 Atl. 1032, 6 N. C. C. A. 958.

72. Clements v. Columbus Saw Mill Co., Ohio Ind. Comm. Co., No. 101, Oct. 21, 1914, 6 N. C. C. A. (note) 959; Dyer v. James Blaek Masonry & Contracting Co., 192 Mich. 400, 158 N. W. 959; Boyle v. Mahoney, 92 Conn. 404, 103 Atl., 127, 1 W. C. L. J. 938.

73. Clements v. Columbus Sawmill Co., Vol. 1, No. 7, Bul. Ohio. Indus. Com. p. 161, 6 N. C. C. A. (note) 959.

74.

Scott v. Payne Bros. Inc., 85 N. J. L. Law, 446, 89 Atl. 927, 4 N. C. C. A. 682.

75. Schaeffer v. De Grottola, 85 N. J. Law, 444, 89 Atl. 921, 4 N. C. C. A. 582; Indus. Comm. v. Funk, 191 Pac. 125, 6 W. C. L. J. 436;

Colo.

1

Mueller v. Oelkers Mfg. Co., 36 N. J. L. J. 117.

76. Coyle v. Mass. Employers Ind. Assn., 2 Mass. Wk. Comp. Cases 704; Johnson v. Choate, 284 Ill. 214, 119 N. E. 972, 18 N. C. C. A. 138, 2