Armstrong v. Industrial Accident Commission

CONREY, P. J.

On writ of review to determine the validity of an award made by respondent commission.

Thomas V. Hardwick was employed by the petitioner Leroy Armstrong to work as a carpenter on day wages in the erection of a dwelling-house to be occupied by the employer and his family. After Hardwick had been so employed for about

[2]

three months, and while he was engaged in work on the employer’s house, an accident occurred whereby Hardwick received the injuries for which compensation has been awarded. It is admitted by respondent that the employment of Hard-wick was not in the usual course of the trade, business, profession, or occupation of the employer. Respondent contends, however, that the employment was not “casual” within the meaning of the Workmen’s Compensation Act, and that, therefore, the liability exists. This contention covers the only question for determination in this proceeding.

Section 14 of the Workmen’s Compensation, Insurance and Safety Act, in its definition of the word ‘1 employee, ’ ’ as used in that act, excludes therefrom “any person whose employment is both casual and not in the usual course of the trade, business, profession, or occupation of his employer. ’ ’ That clause was considered by this court in

Blood,

v.

Industrial Acc. Comm.,

30 Cal. App. 274, [157 Pac. 1140], where we referred to decisions from other jurisdictions where the same subject was under consideration. In that case the claimant was employed at a daily wage to apply two coats of paint to a two-story frame building at that time occupied by the owner. The employment was not for any definite period of time, but the evidence showed that the work would reasonably have been done within two weeks. After entering upon his work the claimant was accidentally injured while engaged in the work. This court held that the employment was casual, and as it was also not in the usual course of any business of the employer, the award was annulled. In

Maryland Casualty Co.

v.