In Knorr v. Central R. R. of N. J., 268 Pa. 172, 175, 110 Atl. 797, we held that one furnished with free transportation, to and from his work, was still engaged in his general employment during such transportation, albeit he stopped off a short period on the way home to transact some personal business; and we sustained an award of compensation. See, also, Blouss v. Delaware, L. & W. R. R. Co., 73 Pa. Super. Ct. 95, 97; Hale v. Savage F. B. Co., 75 Pa. Super. Ct. 454, 459; Messer v. Mfg., etc., Co., 263 Pa. 5, 8, 106 Atl. 85; Haddock v. Edgewater Steel Co., 263 Pa. 120, 123, 106 Atl. 196. It is true that in Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 167, 110 Atl. 731, compensation was refused where the deceased deliberately left his regular working place and traveled some distance to another part of defendant's mine, entering an abandoned opening, where he caused an explosion of gas; but there the facts presented indicated that the injured man had voluntarily abandoned the course of his employment, whereas here, as previously pointed out, they indicated the contrary. We conclude that deceased was "injured [and killed] by accident in the course of his employment," in the sense of these words as used in the Compensation Law. The question remains, however, Was the employment, during the performance of which Mr. Callihan met his death, "casual in character and not in the regular course of the business of defendant," within the meaning of such phrases in the act under consideration? It will be noticed that, in order to come within the exception of those employees not covered by the law in question, the employment must be both casual in character and outside the regular course of the business of the employer. Article I, section 104, of the Compensation Act (P. L. 1915, p. 736); Tarr v. Hecla Coal Co., 265 Pa. 519, 522, 523, 109 Atl. 224. In Marsh v. Groner, 258 Pa. 473, 479, 102 Atl. 127, L. R. A. 1918F, 213 (note, p. 275), we held that one employed to do some plastering, in connection with the remodeling of defendant's dwelling, was a casual employee, not engaged in the regular course of the employer's business, and therefore not entitled to compenstion. Again, in Blake v. Wilson, 268 Pa. 459, 477, 112 Atl. 126, one employed by a farmer to paint a silo was held to be a casual employee. An investigation of the outside authorities sustains the position taken by us in these cases, as we shall proceed to show. * In Chicago, etc.,. R. R. Co. v. Industrial Com., 284 Ill. 573, 120 N. E. 508, it was held that a structural iron worker, engaged for a few days to complete a driveway in connection with a freighthouse, was engaged in casual employment, the court correctly saying (284 Ill. 579, 120 N. E. 510): The Legislature certainly intended * to give some meaning to 'casual,' and we assume from a reading of the statute that it intended to give the ordinary, common meaning, that is, workmen are engaged in casual employment when they are employed only occasionally,' 'irregularly' or 'incidentally,' as distinguishing them from regularly and continuously.." Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031, holds that one engaged by the owner of a farm to repair a tractor was a casual employee, the court saying (172 Cal. 751, 158 Pac. 1033), that "casual" is "something which comes without regularity and is occasional and incidental"; in State v. Dist. Court, 138 Minn. 103, 107, 164 N. W. 366, a person employed to construct a temporary building to replace one destroyed by fire, on a farm owned by the employer, though not operated by him, was held a casual employee. Western Union Tel. Co. v. Hickman, 248 Fed. 899, 900, 161 C. C. A. 17, 18 (construing the W. Va. act), where a lineman, temporarily employed by a telegraph company to assist in repairing a portion of its line. was held to be but a "casual" employee, contains an interesting discussion of the subject in hand, pointing out differences in phraseology in the English and certain of the American compensation acts, and saying: "This noticeable departure from the language of the English_statute indicates a legislatie intent to broaden the exception and place it on a different basis; its apparent effect is to make exemption depend not on the nature of the work performed, but on the nature of the contract of employment. If the hiring 'be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business, the employment is 'casual,' and covered by the exception. And so it has been held by the courts of states whose compensation acts have substituted 'casual employment,' or words of the same import, for the 'employment of a casual nature,' found in the English statute. In re Gaynor, 217 Mass. 85, 104 N. E. 339, L. R. A. 1916A, 363; In re Cheevers, 219 Mass. 244, 106 N. E. 861; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac 1031. Thus in the Gaynor Case, supra, in which the subject is discussed at length, the court says that 'casual' is the antonym of 'regular,' 'systematic,' 'periodic,' and 'certain.' These decisions, and the convincing reasons on which they rest, warrant the conclusion that plaintiff was engaged in casual employment' when the accident occurred." See, also, Blood v. Industrial Acc. Com., 30 Cal. App. 274, 275, 157 Pac.. 1140.. While the rule adopted in Wisconsin and some other states (see Holmen Creamery Ass'n v. Industrial Com., 167 Wis.. 470, 471, 167 N. W. 808; Gross Bros. & Co. v. Industrial Com., 167 Wis. 612, 614, 167 N. W. 809) differs from that in most jurisdictions, the weight of opinion supports the view that the word "employment" refers to the contract of hiring, more than to the kind of services rendered; that if a person is engaged incidentally and occasionally and for a limited and temporary purpose, though the work may be within the scope of the employer's business, he is a casual employee; and that the word "casual," as thus construed, means "incidental." In this connection, it may be noted that the Standard Dictionary gives "incidental" as the only synonym for "casual." [7] When the tests stated in the authorities reviewed are applied to the circumstances at bar, we have a case of "casual" employment, and, in fact, the court below so found; but it further found that "nevertheless what he [deceased] was doing at the time of the accident] was in the regular course of the business of the employer," and, therefore, notwithstanding the casual nature of his employment, he came within the Compensation Law. We must next consider the legal soundness of this last conclusion, so far as the finding of the regular course of the business of the employer is concerned. This court held, in Marsh v. Groner. 258 Pa. 473, 478, 102 Atl. 127, 129 (L. R. A. 1918F, 213'), that a man, employed by a married woman to do plastering in connection with the remodeling of her dwelling, was not engaged in the regular course of the business of the employer because, as a matter of fact, she was not pursuing a business within the meaning of the act; and we there defined one's buiness to be "the habitual or regular occupation that the party was engaged in with a view to winning a livelihood or some gain." Following this case, we held, in Blake v. Wilson, 268 Pa. 469, 479, 112 Atl. 126, 129, that the employment of a person to complete a silo, on which work had been 'suspended for some time, was not in the regular course of the business of the owner of the farm on which it was constructed, saying: "With the particular object determined, the regular course of the business can only refer to the experience and custom in the conduct of the business as is of usual, if not daily, occurrence and observation. It is suggested that if such had been the meaning the Legislature intended to convey, an apter expression would have been 'in the course of the regular business of the employer.' We think, on the contrary, such change in phraseology would have made the thought obscure. Not only so, but there can be no warrant for transposition of the terms; the meaning, as it stands is not doubtful when it is considered that the word 'regular,' as it is used, does not qualify the word 'business' but the course of the conduct of that business; when that is 'regular' the condition of the act has been met." The decisions of other jurisdictions do not wholly agree, either in the interpretation of the meaning of the phrases under consideration or as to their application, but the strong trend of opinion coincides with the view expressed in the Pennsylvania cases just referred to. Holbrook v. Olympia Hotel Co., 200 Mich. 597, 603, 166 N. W. 876, 878 (a Michigan case, in which state the act excludes "any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer"), held that a painter and decorator, employed to paint and decorate rooms in a hotel, was not an employee engaged in the usual course of the business of the employer, the court stating: "It would seem that occasionally renovating the rooms of a building, or the building itself. owned or occupied by the owner as a home, with paint or paper or both, is not in the usual course of the trade, business, profession or occupation of the owner. unless he is himself in the business of painting and decorating. No reason can be found for concluding that the owner of the hotel is pursuing his business, within the meaning of the law, when he causes the rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time." In Blood v. Industrial Commission, 30 Cal. App. 274, 276, 157 Pac. 1140, it was decided that one employed to paint a house was not in the usual course of the employer's business, the court saying: "The contract of employment of Heck by the petitioner to paint his house was casual. It was a mere occasional and incidental contract, not constituting or connected with any regular, systematic, periodic, or certain business." See. also, Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031, a case of repairs to a farm tractor; La Grande Laundry Co. v. Pillsbury, 173 Cal. 777, 779, 161 Pac. 988, concerning repairs to the roof of a house; London, etc., Co.. v. Industrial Acc. Com., 173 Cal. 642, 645, 161 Pac. 2, where an injured railroad man was fighting fire on a farm, not belonging to the railroad company, and asked compensation from the latter; and Armstrong v. Industrial Com., 36 Cal. App. 1, 2, 171 Pac. 321, where a carpenter was employed at a daily wage to erect a dwelling house. In all of these cases compensation was refused. * * * ** * * State v. Dist. Court, 138 Minn., 103, 106, 164 N. W. 366, 368, held that a man employed to construct a temporary building to replace one destroyed by fire, on a farm owned by the employer, though not operated by him, was engaged in work which was "not in the usual course of the trade, business, profession, or occupation of the employer"; it is there stated: "The words 'usual course' must be regarded as more restrictive than the language employed in the Connecticut and English acts. Assuming * * * the lease obligated defendant to erect a shelter for his tenant's stock * * * we may say, in a certain sense; the erection became his business or duty, but that cannot be the meaning of the word 'business' in this statutc. It must * * refer to the employer's ordinary vocation and not to every occasional, incidental, or insignificant work he may have to do. * Certainly neither the renting of the farm nor the construction of this shed can be referred to as coming within the usual course' of defendant's business or occupation." In Carter v. Industrial Acc. Com., 34 Cal. App. 739, 740, 168 Pac. 1065, 1066, it was held that one employed by a grain dealer to load cars with grain, which had been left on the station platform because of a shortage of cars, was not engaged in the usual course of, the business of his employer; it is there said: * * "The loading was not within the usual business of the employer, the employment must come within the normal operations of the usual and ordinary business of the employer in order to make him liable. This usual and ordinary business here did not involve the loading of the grain but embraced simply the purchase and transportation after the grain was loaded upon the cars. "In other words, the applicant was casually employed to do work which was not ordinarily and usually done by or under the direction of the employer in the business in which he was engaged." Perhaps the decision in this case goes a little far. The English cases are of little value in construing the Pennsylvania statute, because of differences in phraseology between the English act and our own. The American compensation acts pretty generally employ the words "regular" or "usual" course of the employer's business. Undoubtedly. there are American cases, such as State v. Dist. Ct., 141 Minn. 83, 169 N. W. 488, and others there cited, which construe these words differently from the authorities mentioned in this opinion; but the latter are in the majority, and agree more nearly with the view indicated in the Pennsylvania decisions already cited, and here relied on to support the ruling that Callihan, at the time of his injury, was not employed in the regular course of the business of defendant. The casual employment of one. for the performance of an odd job, may occur in conducting a business and still not be within its regular course. For instance, emergency repair work on a machine used in the operation of a business can always be said to take place in the course of that business, as all machinery, at some time or other, is bound to need repair; but such work, if not of a kind usually performed by or under the control of the person conducting the business, would be outside the regular course thereof. The Legislature evidently intended, by the use of 'the words "regular course," to give them some definite significance, and the most natural meaning is that they refer to the normal operations which regularly constitute the business in question, excluding incidental or occasional operations arising out of the transaction of that business, such as now and again repairing the premises, appliances or machinery used therein. While repair work may be considered an important incident to any business using machinery, and, in some cases, may enter into the customary operations of such a business (for example, when men are engaged as regular employees for the purpose of keeping the machinery in order), yet the repairs we are here considering were no part of the regular course of the business conducted by defendant, which is producing oil; they represent merely an odd job, incidental to that business, but not part of the work ordinarily done by or under the control of the employer in this particular case. On the other hand, such repairs might. well be classed as within the regular course of the business of plaintiff's deceased husband. As the employment of deceased to repair the machine in question was casual and not in the regular course of the business of defendant, his widow is not protected by the Pennsylvania act. . The view just stated would not exclude from the benefit of the Compensation Law all those employed at unit, sometimes called "contract." prices, based on quantity of work done, as is argued by plaintiff, because in many such cases the duties performed are neither casual nor out of the regular course of the business of the employer. While we have overruled appellant's first contention, we have sustained the second and third, which control the case; therefore, it is unnecessary to consider the question whether deceased was an independent contractor. We take occasion to say that, although many cases from other jurisdictions are mentioned in this opinion, they are cited, not as authorities with us, or to signify our approval of all the conclusions therein reached. but merely to show the trend of opinion on the points under discussion. What we said in Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 165, 110 Atl. 731, 732, to the effect that, "when the common pleas sustain an exception to an award and reverses the action of the board, it must remit the record to [that body] for further hearing and determination (article IV, section 427, Act of June 26, 1919, P. L. 642)," concerns only exceptions to findings of fact as may be seen by its context and the part of the statute in question there being dealt with. The judgment of the court below and the award of the Compensation Board are both reversed; judgment is here entered for defendant. KELLY v. WATSON COAL CO. et al. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. MASTER AND SERVANT-EVIDENCE HELD TO SHOW COMPENSABLE INJURY TO WORKMAN DEVELOPING TUBERCULOSIS CAUSING DEATH. In a proceeding under the Workmen's Compensation Act (Pa. St. 1920, § 21916 et seq.), to obtain compensation for the death of an employee struck by the crank of a crab, medical testimony held to show that the accident was a contributory cause in the development of tuberculosis, which resulted in his death, upon the theory that the shock rendered him subject to the quick development of the disease and that such development was due to the injury. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Appeal from Court of Common Pleas, Indiana County; J. N. Langham, President Judge. Proceedings under the Workmen's Compensation Act by Carrie S. Kelly for the death of H. E. Kelly, opposed by the Watson Coal Company, employer, and the Etna Life Insurance Company, insurer. Award of the Compensation Board-affirmed by the court of common pleas and the insurer appeals. Affirmed. Argued before Moschzisker, C. J., and Frazer, Walling, Simpson, Kephart, Sadler, and Schaffer, JJ. John M. Reed, of Pittsburgh, and James W. Mack, of Indiana, Pa.. for appellant. S. J. Telford, of Indiana, Pa., for appellee. MOSCHZISKER, C. J. At the inception of this suit, Carrie S. Kelly made a compensation claim against defendant coal company for the death of her husband, H. E. Kelly; this was allowed by the Board and the decision was affirmed by the court below; the insurance carrier has appealed, contending that the evidence was insufficient to connect Kelly's death with the accident here in question and that the testimony of certain of the medical experts should not have been considered. [1] It appears from the evidence that Kelly, a carpenter in defendant's service, was injured March 19, 1918; he had been employed by the coal company for three years prior to the accident, was "a steady worker." and had lost no time on account of sickness, although there is some testimony that he was not what would be termed a robust man. Deceased was winding a crab, turning over a car to make some repairs on its bottom, when the crank flew out of his hands striking him on the head and 30 Vol. IX-Comp. |