Carter v. Industrial Accident Commission

BURNETT, J.

This case comes up on

certiorari

to review the findings and award of the Industrial Accident Commission in favor of Roy E. Ladd against C. T. Carter. From the return to the writ it appears that Carter was engaged in the business of buying and shipping grain; that he had purchased about sixty carloads of wheat in Modoc County f. o. b. the cars at the nearest railroad station. After the sellers, (farmers) had loaded part of the grain, a shortage of cars occurred, necessitating.the placing of several loads upon the railroad platform awaiting the arrival of the cars. When the required cars arrived, the farmers, whose duty it was to load the grain, were at their homes, some twelve miles from

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the station, and in order to avoid the delay incident to sending for them, Carter employed Ladd for four days to load the grain that was on the platform. It was while loading this that Ladd slipped and broke his knee-cap, for which injury the commission awarded him indemnity against Carter. As a basis for his protest Carter claims that Ladd was not an “employee” within the terms of the Workmen’s Compensation, Insurance and Safety Act, since his employment was both casual and not in the usual course of the business or occupation of' Carter. Respondents admit that Ladd was a “casual” employee, but insist that “loading grain” was a part of the usual course of the business of Carter. The sole question for determination is, then, whether upon the facts as disclosed by the record “loading grain” was included within the usual course of Carter’s business, which was buying and shipping grain.

Respondents claim that as grain cannot be bought and shipped without loading it, loading is an incident of shipping. Though this is quite true, it does not necessarily follow that loading grain was within the usual course of business of Ladd’s employer. There is no evidence in the record that such was the case. It does appear, however, that of the sixty carloads, more than fifty-nine and one-half were loaded by the sellers, and both buyers and sellers testified that the general custom in that community was for the sellers to do all loading, and that the buyer had nothing whatever to do with it. The occasion calling for the employment of the applicant was accidental and unforeseen, and, as appears from the custom, wholly excluded from Carter’s usual course of business. The argument of respondents might well be -carried a step further, to the effect that the hauling of the grain was an incident to the shipping, since only by that means could the grain be brought to the station. Yet had Carter found it necessary in an emergency to cart one or two loads from the ranches some twelve miles distant, we do not believe that it could be correctly said under the facts of this case that carting grain was a part of his usual course of business. No more, then, was the loading.