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a household servant. On the other hand, a chauffeur hired by the month to run the employer's private automobile, but not living under such conditions as to constitute him a member of the family, is not a household servant.** Likewise one who is employed to perform incidental services around the premises and residence of his employer, and not required to do anything inside the house, and who does not live on the premises, is not engaged in "household domestic service," within the meaning of the California Act. While it is doubtful whether the test of living in the employer's house is the sole test of household service, it is essential that he be engaged in rendering service in the house, such as cleaning, cooking, or washing. Where a porter in a saloon was sent upstairs by the proprietor to wash the windows in the apartment above, Where such employer resided with his family, the porter receiving extra pay when he did such upstairs work, and while so engaged fell to the sidewalk and was injured, at the time of his injury he was engaged in household domestic service. Employés entitled to Compensation under the California Act do not include any "emPloyé engaged in farm, dairy, agricultural, viticultural, or horti

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44 (Code Supp. 1913, § 2477m [a]) Id.

45 (Code Supp. 1913, § 2477m [a] and section 2477m16[b]) Id.

46 Cleveland v. Hastings, 2 Cal. I. A. C. Dec. 15.

47 Castellotti v. McDonnell, 1 Cal. I. A. C. Dec. 351.

48 Where a rough carpenter and cement worker is called out of town by the owner of a dairy to put a roof on a reservoir used for storing water for the watering of the stock, and is put to work repairing a leak in the conCrete reservoir, the breaking of a ladder causing him to fall and fracture his rist, he is not an "employé" as defined by section 14 of the Compensation Act, being engaged in dairy labor, an excepted occupation. Reed v. Winn, 2 Cal. I. A. C. Dec. 687.

Employés not engaged in farm or dairy labor: An employé engaged in de11 vering milk for an employer who buys milk at wholesale and retails it to the consumers. Woodruff v. Peterson, 1 Cal. I. A. C. Dec. 516. A carpenter employed by persons operating a dairy ranch to go upon the ranch and build a barn, residing on the ranch while at work. Cowles v. Alexander & Kellogg, 2 Cal. I. A. C. Dec. 615.

cultural labor,* in stock 50 or poultry raising, or in household domestic service." "1

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Within the provision of the Iowa Act that the term "workman" means those engaged in clerical work only, but clerical work shall

49 Where a rough garden laborer, whose duties are moving and transplanting trees and constructing boxes and framework, strains himself while moving soil with a wheelbarrow to fill in ground for a lawn, he is engaged in horticultural labor. Georgandas v. Panama-Pacific International Exposition, 2 Cal. I. A. C. Dec. 520. Where a laborer is in the employ of a nursery, whose duties are in the handling of trees and plants in transplanting and in loading them on a truck for the market, is injured while being conveyed with fellow workmen on the automobile truck, he is injured while engaged in horticultural labor. Butti v. MacRorie-McLaren Co., 2 Cal. I. A. C. Dec. 535. Where a gardener was employed by an exposition company to take care of the lawns, trees, and shrubbery on their grounds, and was injured by a scratch upon the eyeball while working as such gardener, he was engaged in horticultural labor. Panama-Pacific International Exposition Co. v. Hooper, 1 Cal. I. A. C. Dec. 429. Where a gardener was employed to prune, trim, and spray fruit trees growing upon the residence premises of the defendant, who was a city employé, he was engaged in horticultural labor. Bagley v. James, 2 Cal. I. A. C. Dec. 842.

50 Where it distinctly appeared from the application itself, corroborated by the answer, that the employé was killed while riding a horse, gathering cattle for his employer, who was engaged in the business of raising cattle, the Commission has no jurisdiction; employés engaged in stock-raising being excluded by the Compensation Act from accident disability benefits. Topping v. Ellis, 2 Cal. I. A. C. Dec. 382. Where a cook is in charge of a kitchen for the feeding of the hands on a large cattle ranch of 4,500 acres of grazing land, a small extent of which was in grain and alfalfa, he was engaged in stock-raising, and therefore the accident was not compensable. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587. Where an employer, engaged in the business of hog raising on a farm in the outskirts of Los Angeles, in order to obtain the vegetable refuse matter of the city market, had to enter into a contract to remove, for a consideration, all garbage from the market, and in the hauling of such garbage, of which but one-third was suitable for hog feed, the teamster sustained an injury, such employé residing on the farm and having no other duty than to do such hauling, such injury was not compensable; such employé being engaged in stock-raising, an excepted employment. Dana v. De Turk, 2 Cal. I. A. C. Dec. 954.

51 Wk. Comp. Act (Cal.) § 14.

not include one standing in a representative capacity to the employer, a partner and a managing corporate officer, being persons standing in a representative capacity, are not entitled to compensation. Partners are employers rather than employés."

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That a workman's employment is casual or intermittent does not deprive him of the status of "employé," in the absence of an express statutory provision to that effect. But many of the Acts exclude from their protection casual employés, excepting, in some states, certain municipal and other public employés,5* and it be comes material to determine what is a casual employé. Time has confirmed the wisdom of the conclusion, early arrived at by the English authorities, that no hard and fast definition of the term "casual" is advisable.55 The word, as commonly used, means some

52 (Code Supp. 1913) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3.

53 In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. If deemed desirable to withhold compensation from casual of occasional employés, as is done by the Compensation Acts of some states, that is a matter for the Legislature, not for the court or Commission. Id.

54 The proviso of the Michigan Act, excluding those "whose employment is but casual," does not apply to employés of the state or of municipal corporations within the state. (Wk. Comp. Act, pt. 1, § 7, subd. 2) Agler v. Mich. Agricultural College, Op. Mich. Indus. Acc. Bd., Bul. No. 3, p. 25.

Under the Ohio Act casual employés of a county, city, township, unincorporated village, or school district are entitled to compensation where they are injured in the course of their employment. In re Barbara Michaels, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 156. Other casual employés, though engaged in the usual course of trade, business, profession, or occupation of the employer, are excluded from the protection of this Act. (Wk. Comp. Act, § 14, par. 2) Clements v. Columbus Saw Mill Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 161.

The defense of casual employment is not available to a municipality, but only to private employers. Brown v. City of Mauston, Bul. Wis. Indus. Com. vol. 1, p. 97.

55 Thompson v. Twiss (1916) 90 Conn. 444, 97 Atl. 328.

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thing which comes without regularity and is occasional and incidental. Its meaning may be more clearly understood by referring to its antonyms, which are "regular," "systematic," "periodic," and "certain." An employment is "of a casual nature"-the words of the English Act-when it is not stable, regular, periodic, or certain in nature." The difference between those state Acts, which use the modifying word "casual," and the English Act, which uses the words "of a casual nature," must be regarded as designed.58 The effect is to narrow the scope of such state Acts, as compared with the English Act. In those states, the contract of service is the thing to be analyzed to determine whether the employment is casual, while in England the nature of the service rendered is the decisive test. Ordinarily an employment is casual when for a

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56 In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363.

57 The employment was of a casual nature where a jobbing gardener was hired by the day to trim trees, then to level the lawn, and then to trim more trees, being paid by the day-(Knight v. Bucknill [1913] 6 B. W. C. C. 160, C. A.) where a carpenter was hired by a householder to cut down some trees on the grounds of a house upon which he had been working as a carpenter; (McCarthy v. Norcott [1910] 2 B. W. C. C. 279, C. A.) where a man was hired by a householder for several years to clean windows at irregular periods, whenever they needed cleaning; (Hill v. Begg [1909] 1 B. W. C. C. 320, C. A.) where, without making arrangements in advance, a workman cleaned the windows of his employer's residence once each month for four years, and was then killed; (Ritchings v. Bryant [1913] 6 B. W. C. C. 183, C. A.) where a window cleaner was in the habit of calling at a doctor's residence, without invitation, about once a month, to clean his windows; (Rennie v. Reid [1909] 1 B. W. C. C. 324, Ct. of Sess.); but not where a charwoman went to the same employer regularly on certain fixed days, although without special orders; (Dewhurst v. Mather [1909] 1 B. W. C. C. 328, C. A.) nor where an old servant worked for several years in the woods when trimming season arrived, for as long as the work lasted each year, this being regular seasonal employment (Smith v. Buxton [1915] 8 B. W. C. C. 196, C. A.).

58 In re Gayner, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363. (Since the rendition of this decision the Massachusetts Act has been amended by striking out the words "or casual.")

59 Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328; In re Gayner, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; Knight v. Bucknill, 6 B. W. C. C. 160.

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single day, or by the hour, but not where one is employed to do a particular part of a service recurring somewhat regularly, with the fair expectation of the continuance for a reasonable time."2

60 (St. 1911, c. 751, pt. 5, § 2, as amended by St. 1914, c. 708, § 13) In re King, 220 Mass. 290, 107 N. E. 959. A teamster's employment was but casual, where he was occasionally employed by another, as he wanted him, at a certain sum a day for himself and team. (St. 1911, c. 751, as amended by St. 1912, c. 571) In re Cheever, 219 Mass. 244, 106 N. E. 861.

61 "A man was hired to shingle the home of his employer. After he had finished the shingling of this house it was the intention of the employer to have this man do some repairing around other houses that he owned. The man was hired by the hour, at the rate of 20 cents an hour. The Attorney General advised that the employment was a casual employment and the employer would not be liable under the Compensation Act." Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 11, p. 20. Volunteer firemen, paid $1 an hour for the first hour of service for every call, and 50 cents an hour for succeeding hours, are casual employés, and are not included in the act. Id.

62 Sabella v. Brazileiro, 86 N. J. Law, 505, 91 Atl. 1032; 87 N. J. Law, 710, 94 Atl. 1103.

A man was employed by the road overseer of the county council to draw stones from the quarry. His wages were fixed by contract. The evidence showed that he was to get work now and again when there would be work to do, there being no objection to his working for some one else when he was not wanted by the overseer. The court held that he was a workman within the meaning of the Workmen's Compensation Act. O'Donnell v. Clare County Council (1913) 6 B. W. C. C. 457, C. A.; Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 11, p. 20.

Where one was employed for an indefinite period at $5 per day to work on a contract for the erection of a structural steel building, this was not a casual employment. (P. L. 1911, p. 134) Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927. Where petitioner testified that the employer told him to "come Monday morning, I will give you some work to shave the skins," that the price was to be so much a dozen, and, if petitioner did better work, 16 cents, the jury could properly find that the intention was to give petitioner piece work in the defendant's regular business. Such employment was not "casual." (P. L. 1911, p. 134) Schaeffer v. De Grottola, 85 N. J. Law, 444, 89 Atl. 921.

Where, in the work of superintending and helping in the unloading of glass to be used on a building, there was an element of certainty in the recurrence of the work at times which, though they could not be fixed definitely, were sure to occur and recur in the construction of the building, the work was not casual employment. (Wk. Comp. Act, pt. 1, § 7) Dyer v. James Black Masonry & Contracting Co., Mich. Wk. Comp. Cases (1916) 52, 158 N. W. 959. Filling a silo and digging potatoes is as much a part of the business of

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