#### Holmen Creamery Association and another, Respondents, vs. Industrial Commission of Wisconsin and another, Appellants.

*May 3*

May 21, *1918.*

*Workmen's compensation: Who are employees: “Casual employment:" Making repairs on building.*

1. The term “employment,” as used in sub. (2), sec. 2394 — 7, Stats. *1915,*refers to tlie nature or kind of service rendered rather than to the nature of the contract of hiring.

2. An employment which “is but casual,” within the meaning.of said statute, is one which is only occasional, or comes at uncertain times, or at irregular intervals, and whose happening cannot be reasonably anticipated as certain or likely to occur or become necessary or desirable.

3. Repairs upon a building used for business purposes are an essential part of the business and, though they come at irregular intervals and the exact time when they will be needed cannot be foretold, are to be anticipated, provided for, and made when necessary or convenient; hence, although a workman who was injured while making repairs on a creamery building had been, on that as on several previous occasions, specially hired for the repair work only, his employment was not merely “casual,” within the meaning of sub. (2), sec. 2394 — 7, Stats. 1915.

Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.

*Reversed.*

Action to vacate an award of the *Industrial Commission*allowing compensation to the defendant *Wallum*for injuries sustained by him while in the employ of plaintiff *Holmen Creamery Association.*There is no dispute in the facts. *Wallum*was hired by the manager of the *Creamery Association*to make some repairs on the creamery consisting of mason work and plastering inside and outside of the building. He started to work about 10 o’clock in the forenoon of November 26, 1916, and was injured'about 3 o’clock in the afternoon of the same day. He had previously worked for the *Creamery Association*off and on and had built part of *471the building, but bad never been steadily employed by it. He was always hired specially whenever be did repair work for it, and was paid by the hour or day. It was understood that when these repairs were completed bis employment terminated and that if be rendered further services it would be under a new employment. The circuit court vacated the award on the ground that the employment of *Wallum*was but casual within the meaning of sub. (2), sec. 2394 — 7, Stats. 1915. The *Industrial Commission*and *Wallum*appealed. a

For the appellant *Industrial Commission*there was a brief by the *Attorney General*and *J. E.*Messerschmidt, assistant attorney general, and oral argument by *Mr. Messerschmidt.*

For the respondents the cause was submitted on the brief of *Boehr &*Steinmetz, attorneys, and *Julius E. Boehr,*of counsel, all of Milwaukee.

Vinje, J.

The question raised by the appeal is, Was *Wallum*at the time of his injury an employee of the *Holmen Creamery Association*within the meaning of the Workmen’s Compensation Act? Sec. 2394 — 7 of that act provides that

> “The term 'employee’ as used in sections 2394 — 1 to 2394 — 31, inclusive, shall be construed to mean: . . .

> “(2) Every person in the service of another under any contract of hire, express or implied, oral or written, . . . but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.” Stats. 1915.

In 1917 the legislature amended this section by striking out the words “is but casual or,” so that in the future eases like the present will not arise.

It is quite evident that the term “employment” used in the quoted section refers to the nature or kind of service rendered by the employee rather than to the nature of his contract of hiring. The true test, therefore, is whether the service *472rendered or the work done by the employee is of a casual nature. The difficulty of applying this test lies not so much in the selection of a correct definition of the adjective *casual*as in determining whether a given state of facts comes within the definition selected. Our standard dictionaries give six or seven different definitions of the word, only two of which need be considered. The first or primary meaning of the word is “happening or coming to pass without design, and without being foreseen or expected, accidental, coming by chance.” The secondary meaning is “coming without regularity or at uncertain times, occasional, incidental.” Neither of these definitions alone exactly fits the meaning of the word as used in the statute. As therein used it implies an element of chance or lack of design or intention as to the occasion that gives rise to the employment, but not as to the hiring or service to be rendered when such occasion has arisen. Hence, an employment that is only occasional, or comes at uncertain times, or at irregular intervals, and whose happening cannot be reasonably anticipated as certain or likely to occur or to become necessary or desirable, is but a casual employment within the meaning of the statute. It is one that arises occasionally or incidentally and is not a usual concomitant of the business, trade, or profession of the employer. *Gaynor’s*Case, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; *Uphoff v. Industrial*Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329; *Thompson v.*Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506; 1 Honnold, Workm. Comp. § 62; L. R. A. 1916A, 247, note; *Id.*365, note.

The defendant *dreamery Association*was engaged in the business of conducting a creamery. For the proper conduct of such a business a building was necessary. It is the common experience of mankind that buildings need repairs from time to time. Indeed, it is so common that the Income Tax Law allows for the deduction of repairs from rentals received, *473and all business concerns of any magnitude provide for a repair account or a fund to meet sucb expenses. It is in evidence that the claimant here had several times repaired this building. The making of repairs, therefore, belongs to the category of things to be expected and provided for. True, repairs come at irregular intervals and one cannot accurately foretell just when they will be needed. But needed they will be in any business that endures for any considerable length of time. They are therefore á part of the employer’s business, to be anticipated and met when necessity or convenience dictates. Being an essential and integral part of every business employing material things in its prosecution, no reason is perceived why one employed to make them should not be classed as an employee of the one for whom they are made. They are essential to the successful prosecution of every business whose implements are subject to the corroding touch of time and a usual concomitant thereof. ' They are foreseen, provided for, and made when necessary or convenient. The fact that one cannot exactly foretell just when they will have to be made is immaterial. On the same principle a proprietor of a meat market who has to hire extra help Saturdays or on busy days, though at irregular intervals, and does so, makes such extra help an employee within the meaning of the statute. *Jordan v.*Weinman, *post,*p. 474, 167 N. W. 810. And because the cleaning up after repairs is a part of the repair work, one employed to do that is an employee within the act. *F.*C. *Gross & Bros. Co. v. Industrial Comm.,*post, p. 612, 167 N. W. 809.

*By the Court.*— Judgment reversed, and cause remanded with directions to reinstate and confirm the award of the *Industrial Commission.*

Oweh, J., took no part.