Instead of cutting off respondent's allowance altogether, the department should have made an order covering this difference between the present earning capacity of the respondent and his former earning capacity. Considering, then, the spirit of the law, that an injured workman in extrahazardous employment shall have "a sure and certain recovery," and the letter of the law as we conceive it to be, the case will be remanded to the superior court, to be from thence transmitted to the department, with directions to make such an order as will reasonably cover the difference in the wage-earning power of the respondent. It is so ordered. Ellis, C. J., and Mount, Parker, and Holcomb, JJ., concur. SUPREME COURT OF WISCONSIN. HOLMEN CREAMERY ASS'N ET AL. บ. INDUSTRIAL COMMISSION OF WISCONSIN ET AL* MASTER AND SERVANT-"EMPLOYEE”—“CASUAL" EMPLOYMENT. Under Workmen's Compensation Act (St. 1915, § 2394–7, subd. 2), excepting from the definition of "employee" persons "whose employment is but casual," a workman who had been specially hired several times to repair a creamery building, being paid by the hour or day, injured while so hired, was not casually employed; the fact that it cannot be exactly foretold just when repairs will have to be made being immaterial, as they are an essential and integral part of such business, for the word "casual," as used in the statute, 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, and 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; that is, one that arises occasionally or incidentally and is not a usual concomitant of the business, trade, or profession of the employer. (For other cases, see Master and Servant, Dec. Dig. § 362.) (For other definitions, see Words and Phrases, First and Second Series. Casual; Employee.) Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Action by the Holmen Creamery Association and another against the Industrial Commission of Wisconsin and William Wallum, to review an award in favor of Wallum. From judgment vacating the award, defendants appeal. Reversed and remanded, with directions. * Decision rendered, May 21, 1918. 167 N. W. Rep. 808. 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. Hc had previously worked for the creamery association off and on, and had built part of the building, but had never been steadily employed by it. He was always hired specially whenever he did repair work for it, and was paid by the. hour or day. It was understood that when these repairs were completed his employment terminated, and that if he 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 section 2394-7 (2), Stats. 1915. The Industrial Commission and Wallum appealed. Spencer Haven, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., for appellants. Roehr & Steinmetz, of Milwaukee (Julius E. Roehr, of Milwaukee, of counsel), for respondents. VINJE, J. (after stating the facts as above). 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? Section 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 (Laws 1917, c. 624) by striking out the words "is but casual or," so that in the future cases 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 rendered 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 v. Standard Acci. Ins. Co., 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; Phoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329, Ann. Cas. 1917D, 1; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E. 506; 1 Honnold, Workmen's Compensation, 62; L. R. A. 1916A, 247, note; Id. 365, note. The defendant Creamery 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, and all business concerns of any magnitude provide for a repair account or a fund to meet such 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 a 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, 167 N. W. 810, decided herewith. 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 Commission, 167 N. W. 809, decided herewith. Judgment reversed and cause remanded, with directions to reinstate and confirm the award of the Industrial Commission. Owen, J., took no part. SUPREME COURT OF WISCONSIN. F. C. GROSS & BROS. CO. et al. ບ. INDUSTRIAL COMMISSION OF WISCONSIN ET AL* 1. MASTER AND SERVANT-"REPAIR WORK"-"CASUAL" EMPLOYMENT-"EMPLOYEE." Under Workmen's Compensation Act (St. 1915, § 2394-7, subd. 2), excepting from the definition of "employee" persons "whose employment is but casual," a laborer at a packing plant, not regularly employed, who, after finishing a three days' contract of employment in loading fertilizer, was employed under another contract to assist in doing the cleaning up necessitated by special repair work, consisting of building a new ice box and taking out partitions in one of the buildings, and was injured while so working, was doing "repair work," and therefore was not casually employed under the act. (For other cases, see Master and Servant, Dec. Dig. § 362.) (For other definitions, see Words and Phrases, First and Second Series, Casual; Employee; Repair.) 2. MASTER AND SERVANT-INJURIES TO SERVANTS-WORKMEN'S COMPENSATION ACT-"USUAL COURSE OF BUSINESS" "CASUAL." Repairs about an industrial plant, whether frequent or such as may occur but once in a long industrial life, are none the less repairs, work on which, either or special, is neither casual nor without the usual course of business under St. 1915, § subd. 2. (For other cases, see Master and Servant, Dec. Dig. § 362.) (For other definitions, see Words and Phrases, First and Second Series, Usual Course of Business.) Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Action by F. C. Gross & Bros. Company and another against the Industrial Commission of Wisconsin and Albertine Loferski to review an award in favor of Loferski. Judgment for defendants, and plaintiffs appeal. Affirmed. The Industrial Commission awarded compensation to the respondent Albertine Loferski on account of the death of her husband, Peter Loferski, as against the appellant F. C. Gross & Bross. Co. as employer, and Wisconsin Employers Exchange as insurer. The appelant employer conducted a packing industry in Milwaukee. During the process of the 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 the plant. This work was performed at times by their regular * Decision rendered, May 21, 1918. 167 N. W. Rep. 809. employees and at times by men engaged for such occasions. The deceased was not regularly employed by the appellant, but had at times been called in to assist in such loading of the fertilizer. At other times he did odd jobs for other employees, but pursued no regular employment. At the time in question here he was set to work on Monday morning in so loading the fretilizer, and continued at such until Wednesday night. After this work was finished he requested employment for the 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 the yard of the 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 cleaning up work necessary in the usual conduct of the industry. While so engaged, and early on the next day, he received an injury by the breaking of a bone of his foot. He was removed to a hospital, and died within three days thereafter. It appeared that the cause of his death was the result of this injury and also of delirium tremens. Upon the review of these proceedings before the circuit court for Dane county the award of the commission was affirmed and from the judgment thereon this appeal was taken. Otjen & Otjen, of Milwaukee, for appellants. Spencer Haven, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for the Industrial Commission Joseph G. Hirschberg, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent Loferski. ESCHWEILER, J. (after stating the facts as above). [1] 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 (section 2394-7, subd. 2), involved in Holmen Creamery Association et al. v. Industrial Commission and William Wallum, 167 N. W. 808, decided herewith, 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 car 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. [2] 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 of such a nature that they may occur but once in a long industrial life, |