Hendrickson v. Industrial Accident Commission

SHENK, J.

Review to annul an award of the Industrial Accident Commission.

The petitioning employer, August Hendrickson, had been engaged in the contracting business in Berkeley. Shortly prior to May 21, 1929, he went to Alturas with the intention of engaging in the lumber business. Upon looking over the ground he considered that the lumber business was then being overdone at that place and definitely decided to

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engage in the hardware business. He then set himself to the work of making the premises ready for the operation of the business. He engaged several men to do the necessary work of repairing and cleaning the building preparatory to actual exhibition and sale of merchandise. The respondent Lieska was employed and proceeded to remove rubbish from the basement. He worked less than two days. While so employed he ran a sliver in a finger of his left hand. The wound became infected and a permanently crippled hand resulted from blood poisoning. After numerous hearings before referees of the Commission and a rehearing before the Commission itself, an award was made in Lieska’s favor against the employer in the sum of $1190.04, which included a ten per cent increase following a finding by the Commission, pursuant to section 29c of the act, that the employer had wilfully failed to secure the payment of compensation as required by the act.

The injury occurred on May 21, 1929. The increase of ten per cent was provided for in section 29c as amended in 1929. (Stats. 1929, p. 551.) The amendment became effective on August 14, 1929, or about three months after the date of the injury. It is conceded by the Commission that the amendment was not retroactive and that the increase of ten per cent was inapplicable to the case. For this reason, the award must in any event be annulled.

An important question should be settled for the guidance of the Commission on a reconsideration of the matter. It is earnestly contended by the petitioner that the employment of Lieska was both casual and not in the course of the business or occupation of his employer and that the-employee is therefore excluded from compensation under the terms of section 8a of the act. It is conceded by the Commission that the employment was casual, but it is insisted that it was, as the Commission found, in the course of the business or occupation of the employer. Section 8c of the act provides that “the phrase ‘course of the trade, business, profession or occupation of his employer’ shall be taken to include all service tending toward the preservation, maintenance or operation of the business premises or business property of the employer”, and that the words “trade, business, profession or occupation of his employer” shall