#### F. C. Gross & Brothers Company and another, Appellants, vs. Industrial Commission of Wisconsin and another, Respondents.

*May 3*

July *8, 1918.*

*Workmen’s compensation: Who are employees: “Casual employment:" “Usual course of the business:" Cleaning up after special repair work.*

Where one was employed to assist in cleaning up certain parts of a packing plant, although this was not a part of the regular cleaning-up work necessary in the usual conduct of the industry, but was necessitated by special and unusual repair work which had just been completed, his employment was neither “casual” nor without the “usual course of the . . . business” of his employer, 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.

*Affirmed.*

*613Tbe appeal is from- a judgment confirming an award of tbe *Industrial Commission*in favor of *Albertine Loferski.*

Tbe *Industrial Commission*awarded compensation to tbe respondent *Albertine Loferski*on account of tbe death of her husband, Peter Loferski, as against tbe appellant *F. G. Cross & Brothers Company*as employer and- *Wisconsin Employers Exchange*as insurer.

Tbe appellant employer conducted a packing industry in Milwaukee. During tbe process of tbe work a certain fertilizer accumulated from time to time so that every four or five weeks it was necessary to load it on a car and remove it from tbe plant. This work was performed at times by their regular employees and at times by men engaged for such occasions. Tbe deceased was not regularly employed by tbe appellant but had at times been called in to assist in such loading of tbe fertilizer. At other times be did odd jobs for other employees, but pursued no regular employment.

At tbe time in question here be was set to work on Monday morning in so loading tbe fertilizer and continued at such until Wednesday night. After this work was finished he requested employment for tbe balance of the week and was then engaged to assist in cleaning up and picking up odds and ends around and in certain buildings and portions of tbe yard of tbe employer consequent upon their having built a new ice box and taken out some partitions in one of their buildings. This cleaning up had been going on but a few days at the time and was not a part of the regular elean-ing-up work necessary in tbe usual conduct of the industry.

While so engaged and early on tbe next day be received an injury by the breaking of a bone of bis foot. He was removed to a hospital and died within three days thereafter. It appeared that bis death was tbe result of this injury and also of delirium tremens.

Upon the review of these proceedings before tbe circuit court for Dane county tbe award of tbe *Commission*was affirmed, and from tbe judgment thereon this appeal was taken.

*614Eor the appellants there was a brief by *Otjen & Otjen*of Milwaukee, and oral argument by *Henry H. Otjen.*

Eor the respondent *Industrial Commission*there was a brief by the *Attorney General*and *Winfield W. Gilman,*assistant attorney general, and oral argument by *Mr. Gilman.*

Eor the respondent *Albertine Lofershi*there was a supplemental brief by *Joseph G. Hirschberg,*attorney, and *Horace B. Walmsley,*of counsel, both of Milwaukee, and oral argument by *Mr. Hirschberg.*

The following opinion was filed May 21, 1918:

Eschweiler, J.

The appellants contend that the employment of the deceased was casual and also not in the usual course of the trade, business, profession, or occupation of the employer. These questions involve consideration of the same provisions of the statute, sub. (2), sec. 2394 — 7, involved in *Holmen C. Asso. v. Industrial Comm., ante,*p. 470, 167 N. W. 808, and the construction there placed upon the provisions of this statute must control in this case and necessitates affirmance of the rulings of the circuit court and of the *Industrial Commission*and a confirming of the award.

His injury occurred, not under the contract of employment by which he was working at loading the ear with fertilizer on the Monday, Tuesday, and Wednesday preceding the accident, but under the contract of employment made at the completion of that work on Wednesday, by which new contract he was. to assist in doing the cleaning up necessitated by the special repair work which had just been finished.

Although it may not have been strictly accurate to speak of the work the-deceased was doing at the time of his injury, as was said in the court below, that it was in the nature of janitor service or as a part of the continual cleaning-up process going on in that industry all the time, still it was repair work.

Repairs about an industrial plant, whether such repairs are what might be called usual and to be anticipated, or are *615of such, a nature that they may occur but once in a long industrial life, are none the less repairs, and work on such repairs, either general or special, is neither casual nor without the usual course of the business of the employer as we now construe those terms in this statute.

*By the Oourt.*— The judgment of the circuit court is affirmed.

OwbN, J., took no part.

A motion for a rehearing was denied, without costs, on July 8, 1918.