Vickers v. Department of Industrial Relations

SHENK, J.

Petition to review and annul an award of the Industrial Accident Commission.

The award was made in favor of one Theodore Stenerson who suffered the loss of his right eye from an injury occurring while he was engaged in drilling the concrete wall of a cesspool on the property of the petitioner in the town of Anderson, Shasta County. The petitioner is a public schoolteacher and was regularly engaged in that profession at the times involved herein. It is conceded that the work done by Stenerson was not in the course of the trade, business, profession or occupation of the employer. The question to be determined is whether the evidence and the inferences reasonably to be drawn therefrom sufficiently support the finding of the Commission that the employment of Stenerson by the petitioner was other than casual.

The term “casual”, as defined by section 8 (c) of the Workmen’s Compensation Act, is applicable only to employment where the work contemplated is to be completed in not exceeding ten working days, without regard to the num

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ber of men employed, and where the total labor cost of such work is less than one hundred dollars. Concededly the total cost of the work involved here was less than one hundred dollars and the remaining question is whether the work contemplated was to be completed in more than ten working days.

On February 17, 1930, the petitioner went to a poolroom at Anderson and inquired if anyone there wanted work. Stenerson replied that he was looking for work. The petitioner stated that he desired someone to clean out an old cesspool and complete a new one. The petitioner told Stenerson to come the next morning and bring someone to help him bale out the old cesspool. The testimony establishes without conflict that at the time of the conversation in the poolroom nothing was said concerning any other than the cesspool work, which it is admitted would not occupy more than three or four working days. The next morning and before the petitioner left to attend to his school duties, Stenerson arrived with a helper and started work on the cesspool. On the second day of work, while drilling the concrete wall between the old and new cesspools, a steel splinter flew into Stenerson’s eye.