tors and gave expert testimony after detailing the facts upon which such expert testimony was based did not authorize the Industrial Commission to disregard the evidence. There is no showing in the record that it did so, but a clear showing that it misapprehended the paragraph or provision of the law applicable to the facts proved. The court in entering its judgment merely passed upon questions of law and reviewed no question of fact. When the necessary facts are proved and are wholly undisputed, it is a mere question of law as to what amount of compensation an injured party is entitled to receive, where he is petitioning for compensation under the Compensation Act.

The judgment of the circuit court is correct, and it is affirmed. Judgment affirmed.

SUPREME COURT OF ILLINOIS.

CONSUMERS' MUT. OIL PRODUCING CO.

V.

INDUSTRIAL COMMISSION ET AL. (No. 12795.)*

1. MASTER AND SERVANT-BURDEN TO PROVE CASUAL EMPLOYMENT.

The burden of proof is on the claimant for compensation under the Workmen's Compensation Act to prove employment and injury, but on the employer to prove the employment was merely casual.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

2. MASTER AND SERVANT--“CASUAL EMPLOYEE" WITHIN WORKMEMN'S COMPENSATION ACT.

Servant of oil producing company, injured while employed to pull pumps and repair pump jacks, service paid at so much a month, whether the employment required one day or a month, assured when hired there would be three or four weeks' work, and maybe longer, held a "casual employee," or one employed without regularity, occasionally, and incidentally, as the term is used in the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 362.)

Error to Circuit Court, Lawrence County; J. C. Eagleton, Judge. Proceeding for compensation under the Workmen's Compensation Act by Charles Hotaling, opposed by the Comsumers' Mutual Oil Producing Company, the employer. An award was made by the Industrial Commission, and, to review a judgment affirming it the employer brings error. Judgment reversed.

McGaughey, Tohill & McGaughey, of Lawrenceville, for plaintiff in

error.

George W. Lackey, of Lawrenceville, for defendant in error.

STONE, J. The circuit court of Lawrence county, affirmed an award of the Industrial Commission in favor of the defendant in error, Charles

* Decision rendered. Oct. 27, 1919. 124 N. E. Rep. 608.

Hotaling, for injuries received by him while in the employment of the plaintiff in error.

It appears from the record that the defendant in error was working for the plaintiff in error on what is known as an oil lease near the city of Lawrenceville, Ill.; that the accident happened on May 9, 1916, while the defendant in error was assisting in the repair of a pump jack used in the pumping of crude oil by the plaintiff in error on the 8th day of May, 1916, and was injured while engaged in the business for which he was employed by the plaintiff in error; that he had not been employed by the plaintiff in error, prior to the 8th day of May, 1916, since October 9, 1914. Defendant in error was employed by F. J. Smith, the manager of said lease. Smith employed help only when he was unable to perform the services and do the work necessary in the proper management of the lease. The wages paid for the work performed by defendant in error in that vicinity were at the rate of $70 per month. The testimony of defendant in error shows that Smith told him that there probably would be three or four weeks' work, and maybe longer than that; that at the time of the employment nothing was said as to the amount of wages to be paid; that he was paid for the work he performed on the basis and at the rate of $70 per month; that there was no definite time fixed for the employment, other than the statement by Smith that it would be three or four weeks, and maybe longer. The record shows that at the time of the accident the defendant in error was repairing a jack, and while driving some nails with a hammer a portion of the nail struck him in the eye causing total loss; that this repair work was necessary in order to carry on the usual business of producing oil. The record also shows that Smith looked after the work and was able to take care of it alone, except when certain machinery and pumps were out of repair and it was necessary to pull the wells, and then he hired extra help as needed and for no definite length of time.

[1] The only question presented by the record is whether or not the employment of defendant in error was at the time of the injury casual. The burden of proof is upon the claimant to prove employment and injury, but the burden rests upon the plaintiff in error to prove that the employment was but casual. Chicago Great Western Railroad Co. v. Industrial Com., 284 I11. 573, 120 N. E. 508; Peoria Terminal Co. v. Industrial Board, 279 Ill. 352, 116 N. E. 651; Victor Chemical Works v. Industrial Board, 274 I. 11, 113 N. E. 173, Ann. Cas. 1918B, 627. The defendant in error worked for different concerns engaged in pumping oil. He had worked for the plaintiff in error during the autumn of 1914. He was employed to assist in pulling certain wells and repairing certain pump jacks. Smith testified that the work Hotaling was engaged to do required three or four days, and that he told Hotaling that such time would be required. It is evident from all the testimony in this record that neither party contemplated that the employment was to extend beyond the particular work of pulling certain pumps and repairing certain pump jacks. The record shows that the wage paid for such services in that vicinity was at the rate of $70 per month, whether the employment required one day or a month. Hotaling testified that nothing was said about what the wages would be, and it is not contended that he was employed to work for a month.

The usual and ordinary definition of the word "casual," as given by standard lexicogaphers is that which comes without regularity, and is occasional and incidental, as contrary to the signficance of its antonyms, which are "regular," "systematic,” “periodic," and "certain." As was held in American Steel Foundaries v. Industrial Board, 248 I11. 99, 119 N. E. 902, the mere fact that the employment is for one job only does not necessarily make the employment casual, if the employment be for an indefinite length of time. So, where a

woman was employed to do a particular work on Friday of each week, her employment was held to be not casual. Dewhurst v. Mather, 1 B. W. C. C. 328. In Schaeffer v. De Grottola, 85 N. J. Law, 444, 89 Atl. 921, a workman was employed to shave skins at so much per dozen, and it was held that, as the contract of employment showed an intention to give employment in the employer's business without limit as to time, the employment was not casual. In Sabella v. Brazelerio, 86 N. J. Law, 505, 91 Atl. 1032, 6 Neg. & Comp. Cas. Ann. (N. J.) 958, the injured employee was a longshoreman, who had frequently been employed by respondent to load and unload ships. He was injured while loading a ship. That class of work was not constant, depending upon whether there was a ship in port, but the employee was one of a class of stevedores, and had been frequently called upon by the employer, and had reasonable expectation of the regular recurrence of such employment in the future The employment in that case was held to be not casual.

[2] 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. Applying this rule to the employment of defendant in error, we are of the opinion that such employment was casual. He had not been employed by the plaintiff in error for nearly two years. 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 relations 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 Indusrtial Commission erred in holding that recovery could be had under the Workmen's Compensation Act (Hurd's Rev. St. c. 48, §§ 126-1521), as also did the circuit court. The judgment of the circuit court is therefore reversed.

Judgment reversed.

SUPREME COURT OF ILLINOIS.

DIAMOND LIVERY

ข.

INDUSTRIAL COMMISSION ET AL. (No. 12488.)*

MASTER AND SERVANT-WHAT CONSTITUTES "CASUAL EMPLOYMENT" WITHIN WORKMEN'S COMPENSATION

ACT.

One permitted to sleep in a livery barn and hired at various times for specific work, such as cleaning floors and making drives for which separately and almost immediately paid, and who was not on the *Decision rendered, Oct. 27, 1919. 124 N. E. Rep. 609.

he was

Vol. V-Comp. 3.

pay roll, was engaged in a "casual employment" within Workmen's Compensation Act, § 5, and not entitled to an award for injuries.

(For other cases, see Master and Servant Dec. Dig. § 362.) (For other definitions, see Words and Phrases,, First and Second Series, Casual.)

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings under the Workmen's Compensation Act, by Charles E. Poole, employee, against the Diamond Livery, employer. Award of the State Industrial Commission was affirmed, and the employer brings error. Reversed.

Albert N. Powell, of Chicago, for plaintiff in error.

Charles C. Spencer, of Chicago, for defendant in error.

THOMPSON, J. This is a writ of error sued out by the Diamond Livery, plaintiff in error to review a judgment of the circuit court of Cook county affirming an award of the State Industrial Commission in favor of Charles E. Poole; the circuit court having certified that the cause is one proper to be reviewed by this court.

Plaintiff in error had for many years operated a business in Chicago where it boarded the horses and sheltered the vehicles owned and "sed by Carson, Pirie, Scott & Co., Marshall Field & Co., Siegel Cooper & Co., and many other firms of the city of Chicago. It furnished all accommodations, such as feeding, stalling and cleaning the horses, cleaning the wagons and harness, hitching and unhitching the horses, and storing the wagons. The owners of the horses and wagons employed their own drivers, delivery boys, and other helpers. The several firms paid the plaintiff in error for this service. Twelve or fifteen men were employed by plaintiff in error and were carried on the pay roll. In addition to this boarding service, the plaintiff in error owned some horses which it rented to merchants for $1.50 a day for use on wagons owned by the merchant and driven by the merchant's employee. When these horses were not thus engaged, they were sometimes used by the plaintiff in error in filling calls for funerals, parties, or other trip service, and when so employed the plaintiff in error furnished the carriage and the driver and made a charge for each trip. There were two regular employees at the barn who made these trips when there was a call for a carriage. If for any reason one of these men could not go or both were busy with calls, arrangements were made with some one to make the trip, and this person was paid 25 per cent. of the money earned on the trip. In order to avail himself of the opportunity to make these extra trips, Charles E. Poole, defendant in error, stayed around the barn most of his time. He was permitted to sleep in the barn and provided himself with sleeping accommodations wherever convenient-a part of the time in the harness room and a part of the time in one of the stalls. He was not on the pay roll and was not a regular employee of the plaintiff in error. Since August, 1912, Poole had availed himself of the privilege of sleeping in the barn, and by keeping himself in close touch with the barn had been able to keep reasonably regularly employed by making these special trips and by doing other odd jobs about the barn. When the regular drivers were not available, Poole was given the opportunity to make the trip, and, if he desired, he made the trip and was paid at the end of the trip 25 per cent. of the money earned on the trip. If for any reason the regular employees of the plaintiff in error were not able to keep the premises or the horses clean, the foreman would say to Poole that he would give him 50 cents for sweeping the floor or would give him a quarter for cleaning a horse and hitching it up, or something to that effect. If Poole wanted to perform this service, he would

do so, and would be paid as soon as that service had been performed. Although he remained around the premises most of the time, he was not required and was under no obligation to plaintiff in error to perform these services if he was not so disposed. He could come and go as he pleased. If a call came to the barn after 12 o'clock at night, while he was sleeping at the barn, and there was no other employee at the barn, he would answer the call, and if there was a request fo service he would make the trip and the next morning would be paid his 25 per cent. of the money earned on that trip. September 10, 1914, Poole was about the barn throughout the day. He went on an individual errand for one of the employees of plaintiff in error and was paid by that employee from said employee's individual funds a small sum for the service. At the time he was injured he was walking across the floor of the barn with a duster in his hand and was going to dust the top of the carriage which he sometimes used in making his trips. He collided with Hugo Claire, a delivery boy in the employ of Carson, Pirie, Scott & Co., and they fell to the floor, and in the fall Poole's hip was broken.

Plaintiff in error contends that Poole was not an employee of it in the sense the term "employee" is used in the Workmen's Compensation Act (Laws 1913, p. 335), and contends that such employment as Poole had with it at the time he was injured was but casual. Section 5 of that act provided at the time of this injury and at the time of the hearing before the Industrial Commission, that the term "employee," as used in the act, shall be construed to mean "every person in the service of another under any contract of hire, express or implied, oral or written, * * but not including any person whose employment is but casual." In Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207, we collected authorities and discussed at length what was meant by "casual employment," as that term was used in the Workmen's Compensation Act. We there held that occasional, irregular, or incidental employment was a casual employment. In McLaughlin v. Industrial Board, 281 111. 100, 117 N. E. 819, a laborer who was assisting in the making of a dirt road, and who was employed for plowing and grading the road and hauling stumps off the road after they had been pulled or blown out and to do any other such task as was assigned to him by the road commissioner, was asked by the road commissioner to assist some experts who were dynamiting or blowing out stumps. It was held that inasmuch as this particular employment took but a few minutes of time, and inasmuch as it was not a regular or stable employment within the meaning of the statute, it was merely a casual employment. In Baer's Express Co. v. Industrial Board, 282 Ill. 44, 118 N. E. 412, a boy 16 years old, who had been seen occasionally driving a wagon for the express company, and who was killed by the kick of a horse in the barns of the company on the morning of the day on which he had been promised a steady job by a member of the firm, was held to be a casual employee. In Chicago Great Western Railroad Co. v. Industrial Com., 284 111. 573, 120 N. E. 508, a structural iron worker was employed for a few days' work on a driveway being constructed from a public viaduct to the company's freighthouse, and it was there held that his employment must be regaded as casual because it was occasional, irregular, and incidental as distinguished from regular and continuous. In Thede Bros. v. Industrial Com., 285 Ill. 483, 121 N. E. 172, the employer had a number of regular men whom it used in its transfer and storage business, and when extra help was needed for heavy work it picked up this extra help as it was needed. One Marsh was so employed to help move a heavy furnace. They did not get through with the job the first day, but Marsh was paid for his day's work. He came back the next morning, and the moving of the furnace was completed about 9 o'clock. He was then told to go with the teamster, and they