business, and the parties being then subject to the provisions of the Workmen's Compensation, Insurance, and Safety Act of 1917, sustained injury occurring in the course of and arising out of his employment, as follows: He fell down a stairway, sustaining injury to the back and hips." Petitioner's contention is that the work was both casual and not in the course of trade, business, profession, or occupation of Cowan's employer. In our opinion this contention must be sustained. Section 8 of the act excludes from its operation persons whose employment is both casual and not in the course of the trade, business, or occupation of the employer. Subdivision (3) of the section provides that "The term 'casual' as used in this section shall be taken to refer only to employments where the work contemplated is to be completed in not exceeding ten working days." It also provides that "The phrase 'course of the trade, business, profession or occupation of his employer' shall be taken to include all services tending toward the preservation, maintenance or operation of the business, business premises or business property of the employer"; and that "the words 'trade, business, profession or occupation of his employer' shall be taken to include any undertaking actually engaged in by him with some degree of regularity." [1] It appears that, in response to a question as to how long he had been working on the job for which he was employed, Cowan said: "Well, I had been working on that house perhaps a couple of weeks." And again replying to the question, "And you had been working on that particular house how long?" he answered, "Some two or three weeks; I couldn't hardly tell unless I had brought my books." And to the question, "You testified that you had been on this particular job where you were injured between two and three weeks?" he answered, "Yes, sir." On cross-examination, in response to the inquiry as to how many days he worked, he replied, "I cannot tell you." Whereupon he was asked, "Was it less than 10 days?" to which he replied: "Maybe it was not 10 days, but it was right in there; I won't say positive.' In our opinion, since it appears the employment was not for any definite time (Blood v. Industrial Accident Commission, 30 Cal. App. 274, 157 Pac. 1140), this testimony is insufficient to establish the fact that the work which the applicant was engaged to perform was not to be completed in a period of time less than 10 working days. His testimony upon the subject was not only vague, indefinite, and uncertain, but he himself expresses grave doubt upon the question as to whether his employment was other than casual, as defined by the act. On the contrary, if the burden of showing the employment was casual, devolved upon the employer, his testimony is positive to the effect that the employment contemplated the completion of the work within 10 days, and that in its performance Cowan worked less than 10 days thereon. [2] The question whether the making of repairs necessary and incidental to the upkeep of a building or buildings which the owner lets for hire constitutes a business within the meaning of the statute, was before this court in the case of Lauzier v. Industrial Accident Commission, 185 Pac. 870, wherein it was said: "The mere owning and renting of a house or houses by an individual for purposes of investment, conceding that such owner has no particular or principal business, does not come within the purview of the act," as amended in 1917. As in that case, the petitioner herein had no business other than renting the building for profit. Upon the authority thereof we can but repeat that where an individual invests his money in a house or houses 43 Vol. VIII-Comp. which as owner he lets for profit, and at irregular times when demanded has labor performed in the repair thereof, he is not engaged in the prosecution of a trade or business, within the meaning of the act and upon which a charge as compensation for injury sustained by an employee casually engaged in doing such work can be imposed. Miller & Lux Incorporated v. Industrial Accident Commission 179 Cal. 764, 178 Pac. 960. The award is annulled. We concur: Conrey, P. J.; James, J. JONES v. INDUSTRIAL ACC. COMMISSION OF CALIFORNIA ET AL. (Civ. 3530.) (District Court of Appeal, Second District, Division 1, California. June 30, 1921.) 200 Pacific Reporter, 50. - 1. MASTER AND SERVANT FINDINGS ON EVIDENCE IN COMPENSATION CASE FINAL. An award of the Industrial Accident Commission will be annulled only where there is no evidence to support it. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 2 MASTER AND SERVANT EVIDENCE HELD TO SHOW COMPENSATION CLAIMANT'S EMPLOYMENT WAS NOT CASUAL. Evidence held sufficient to support the finding of the Industrial Accident Commission that compensation claimant's employment as carpenter in repairing a roof, from which he fell, was not casual, but one reasonably requiring work extending over the statutory period of ten days. (For other cases, see Master and Servant, Dec. Dig. § 405[2].) Certiorari by S. Jones against the Industrial Accident Commission of the State of California and others to review an award under the Workmen's Compensation Act (St. 1917, p. 831). Affirmed. D. Z. Gardner, of Los Angeles, for petitioner. JAMES, J. [1, 2] Certiorari to review proceedings had and award made in the matter of the claim of one Rush heard by the Industrial Accident Commission. Award for compensation in the sum of several hundred dollars was made in favor of Rush against the petitioner here, and the latter contends that the findings and award are not supported by the evidence. It is particularly insisted that under the evidence the Commission erroneously found that the employment of Rush was not casual. The second contention, which refers again to the evidence, is that the principal injuries for which compensation was awarded were not shown to have been sustained by the claimant while in the employ of petitioner, and that the claim as to such injuries was fraudulent. The authority of this court in making a review of the evidence heard before the Accident Commission upon which an adjustment of a claim is made is limited to determining whether there is any evidence to be found in the record which will support the findings as made; in other words, that an award will be annulled only where there is no evidence to support it. The transcript of the evidence shows, in that part setting forth the testimony given by the claimant Rush, that he was employed by Jones to do certain repair work; the witness' narrative of the conversation occurring at the time of his employment being as follows: "We went upstairs, and there were two rooms there he showed me. He said, 'I want the paper taken off, and both these rooms sealed on the side, and the ends.' Well, then I came downstairs, and he said, 'I want you to inclose the sink and put a sink board over it, and take these windows and fix them so they will move, and put in these two big lights, and fix these doors that scrape on the floor, fix these door locks and the jambs to the doors; and then I want you to fix outside the railing on that porch, and put the baseboard around these rooms, and I want you to fix that toilet-while there is nothing wrong with it, I want you to put a new board in, or do something with it.' And I looked over the whole thing, and I said, 'Mr. Jones, you have a lot of work here;' and he said, 'I know it.' He said, 'I want you to take hold of it, at eight hours a day, and follow it through until it is done; I don't know how long it will take you.' That was the explanation to me. "Q. What about the roof? A. Well, the room was to be ceiled under the roof; the roof was to be covered-I had forgotten that; he said, 'I want you to go over that roof and fix it the first thing because I am afraid it will rain. We will get that done, and then you can do the inside work if it rains.' So I went to work first on the roof. * * ** "Q. Did you make any estimate of the time it would take you to do the work he said he wanted to have done if you agreed to the schedule you have given? A. It would take me at least three or four weeks to finish what he told me, and I don't believe I could do it in three weeks, I think it would take me a month." Under the provisions of the act relating to industrial compensation, if the work contemplated to be done would require more than 10 days for its execution then the employment would not be termed "casual," and would be one under which compensation could be claimed in the event of injury. We note immediately that ther was a conflict in the evidence as to the length of time which the work Rush was engaged to do might require. There was a conflict first between Rush's statement as to what he was engaged to do and the statement of Jones relating to the same matter. Petitioner Jones testified that he had employed Rush "by the day and told him I didn't know just how much we would have to do about the place; that I would determine that later as he went along; that the roof was the first thing I wanted him to fix. And he completed the roof, and fell off the house." Mrs. Jones, the wife of petitioner, testified that the work "Mr. Jones intended to have done by Mr. Rush himself took another carpenter a day and a half to do." By the testimony of Mrs. Jones it would appear that very much less work was contemplated to be done by Rush than was included in his statement. Rush, according to his own testimony, had only partially completed the roof work, which was the first of the work commenced, when he fell and suffered the injuries complained of. Rush testified that he had been a carpenter and builder all of his life and had held the position of an architect. This we think qualified him to estimate as he did, and, as appears in the testimony first quoted, the length of time which would be required for him to complete all the work which he was employed by Jones to do. From what has been now stated it appears very clearly that there was evidence sufficient to support the finding of the Commission that the employment of the claimant by Jones was not a casual one, but was one which reasonably required work extending over a period of more than ten days. The claim that the injuries, alleged by the claimant to have been suffered as the result of the fall from the roof of petitioner's house, were in fact due to a prior accident not connected with his employment under petitioner, must be considered in the same way. The claimant admitted that at a prior time he had slipped upon a floor and had fallen, but he insisted that he had recovered from any injuries which might have been produced by that fall. The Commission had before it evidence as to all of these matters, and also evidence of physicians who had attended the injured man after he fell from the roof of petitioner's house, and the question as to what injuries were then suffered became one of the things to be determined upon that evidence, and we cannot say that the finding reached on that branch of the inquiry was unwarranted. The proceedings and award are affirmed. Conrey, P. J.; Shaw, J. LONDON GUARANTEE & ACCIDENT CO., LTD., ET AL. V. INDUSTRIAL COMMISSION, ET AL. (No. 10038.) (Supreme Court of Colorado July 5, 1921.) 199 Pacific Reporter 962. 1. MASTER AND SERVANT-FINDING OF COMPENSABLE DIS. ABILITY HELD SUFFICIENT. A finding by the Industrial Commission that the extent of claimant's disabilities was "permaent partial disability equal to 10 per cent of permanent total disability" held sufficient to sustain an award of compensation, against the objection that there was no finding by the Commission support. ing the award, because there was no finding of an impairment of earning capacity. (For other cases, see Master and Servant, Dec. Dig. § 416.) 2. MASTER AND SERVANT - EVIDENCE HELD TO JUSTIFY FINDING OF COMPENSABLE DISABILITY. In proceedings for compensation for injuries caused by falling astride of a stay, evidence held to justify the Industrial Commission in finding a loss of 10 per cent of efficiency on the part of the employee. (For other cases, see Master and Servant, Dec. Dig. § 405[6].) 3. MASTER AND SERVANT—WAGES PAID AFTER INJURY NOT CONCLUSIVE OF QUESTION OF COMPENSABLE DIS The amount of wages paid by the former employer to the workman after the injury, as compared with the wages received before, is not conclusive of the question of the workman's disability; the question being whether his physical and mental efficiency have been substantially impaired, and to what extent and for how long in the future. (For other cases, see Master and Servant, Dec. Dig. § 385[1].) Error to District Court, City and County of Denver; Julian H. Moore, Judge. Proceeding under the Workmen's Compensation Act (Laws 1919, c. 210) for compensation for injuries by T. G. Platt, the employee, opposed by the Colorado Springs Light, Heat & Power Company, a corporation, the employer, and the London Guarantee & Accident Company, Ltd., a corporation, the insurer. Compensation was awarded by the Industrial Commission, such award being affirmed by the district court on application to set aside by the employer and insurer, and they bring error. Affirmed. B. B. McCay and Wm. E. Hutton, both of Denver, for plaintiffs in error. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for defendants in error. WHITFORD, J. In this case it is sought to set aside a finding and award of the Industrial Commission. The Commission made this finding: "That it has been established as a result of the accident described in the agreement above referred to, and in which it is stated that the claimant ruptured the canal of his bladder; that the claimant has sustained a permanent partial disability equal to 10 per cent of permanent total disability; that said disability arises from the nervous shock sustained by the claimant as a result of the injuries described in the agreement above referred to, and its consequent effect upon his bodily health; that it has been established as a result of the accident above described, the claimant has sustained for all practical purposes a total loss of sexual power." [1] It is urged that there is no finding by the Commission which supports the award, because there is no finding of an impairment of earning capacity. This objection cannot be sustained. The accident occurred December 27, 1917. More than a month after the accident plaintiff in error agreed in writing, and the agreement was approved by the Commission, to pay $8 per week during the continuance of disability. Payments were made in virtue of this agreement for 6 weeks, after which a final hearing was had on December 23, 1919, for the sole purpose of determining the extent of the disability, if any, of the claimant. The Commission thereupon found the extent of claimant's disabilities to be "permanent partial disability equal to 10 per cent of permanent total disability." We think this finding of the Commission is sufficient to sustain the award. We have carefully examined the evidence, although not required by statcte to do so, and the findings of the Commission are sustained by sufficient competent evidence. [2] It appears from the record that the injury was inflicted by falling astride of a stay, rupturing the urethra and causing a loss of a part of the scrotum. The physician testified: "The tissues were badly lacerated, and the urethra was not only torn in one, but two or three, places, and portions of the urethra entirely dedestroyed * * * had considerable gangrene of the scrotum; *** that the question was whether he was going to live; whether he would not die from the poisoning; whether he would not have degeneration of the testicles, or a running sore. as a result of the injury.” The evidence was that, when he returned to work, he was nervous and irritable and weak physically; that he suffered from a general sense of tiredness or lassitude; that he was impotent; that there was lack of "pep"; that he was inactive physically; that prior to the injury he was a man of unusual physical strength and power of endurance; that after the accident and at the time of the final hearing, there was a marked loss of vitality and a lack of ability to carry on protracted physical exertion, without periods of rest during working hours; that he is not the man he was two years ago. With this evidence before it, the Commission could very properly find a loss of 10 per cent of efficiency. |