MASSACHUSETTS SUPREME JUDI- meaning of the workmen's compensation CIAL COURT. act. Tombs v. Bomford, 106 L. T. N. S. 823, EMMA G. GAYNOR, Admrx., etc., of Jo- | [1912] W. C. Rep. 229, 5 B. W. C. C. 338; seph C. Gaynor, Deceased, V. STANDARD ACCIDENT INSURANCE (217 Mass. 86, 104 N. E. 339.) Master and servant workmen's com- a, 1, in Dig. 1-52 N. S. A (February 27, 1914.) PPEAL by the insurer from a decree of the Superior Court for Suffolk County affirming a decision of the Industrial Accident Board and ordering insurer to pay to a dependent widow a certain amount as compensation for the death of her husband, in a proceeding under the workmen's compensation act. Reversed. The facts are stated in the opinion. Dewhurst v. Mather [1908] 2 K. B. 754, 77 Rugg, Ch. J., delivered the opinion of the court: The facts in this case are that the deceased employee was a waiter employed, at the time his injuries were received, by T. D. Cook & Company, Incorporated, caterers, having a regular place of business in Boston. It had a contract to serve a banquet at Mt. Holyoke College, South Hadley, on October 9, 1912, and on the day before en gaged the deceased for service at that ban. quet. Its agent told the deceased that if he would report at the South Station in Boston the next morning, he could go to South Hadley at its expense with the other waiters. The wage for the service was to be $4, together with transportation from Boston to South Hadley and return. The deceased reported at 7 o'clock in the morning of October 9th, reached South Hadley at half past 11 o'clock in the forenoon, and was injured while preparing to serve the banquet. This was the first time he had Messrs. Dickson & Knowles, for ap- ever worked for this employer. The work pellant: Deceased was a person whose employment was casual within the meaning of the workmen's compensation act. was finished at 5 o'clock in the afternoon, and the decedent then would have been entitled to $4, and would have been at liberty either to return to Boston at the expense Knight v. Bucknill [1913] W. C. & Ins. of his employer or go elsewhere on his own Rep. 175, 57 Sol. Jo. 245, 6 B. W.. C. C. account. It was a part of the regular busi160; Hill v. Begg [1908] 2 K. B. 802, 24 ness of the employer to provide and serve Times L. R. 711, 77 L. J. K. B. N. S. 1074, banquets, but for such service no men were 99 L. T. N. S. 104, 52 Sol. Jo. 581; Rennie regularly employed. The custom of the v. Reid, 45 Scot. L. R. 814, 1 B. W. C. C. catering business is that such banquets are 324; Ritchings v. Bryant [1913] W. C. & served by waiters secured for the particuIns. Rep. 171, 6 B. W. C. C. 183; M'Carthy lar occasion. Such waiter might work for v. Norcott, 43 Ir. Law Times, 17; Beven, different employers on the same day, or Employers' Liability & Workmen's Compen- | for many different employers on successive sation, 4th ed. 457; Aaronson's Workmen's days. The point to be decided is whether Compensation Acts, 169; Adshed Elliott, the deceased was an employee as defined in Workmen's Compensation Acts, 6th ed.; the workmen's compensation act (Stat. Dawbarn, Employers' Liability & Work- 1911, chap. 751, pt. 5, § 2) as follows: men's Compensation, 4th ed. 94. "Employee' shall include every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employment is but casual, or is not in the usual course of the trade, business, profession, or occupation of his employer." Mr. Edward M. Sullivan, for appellee: The deceased employee, Joseph C. Gaynor, was not, as a matter of law, a person whose employment was casual within the Note. As to who are "casual" employees within the meaning of the workmen's compensation act, see annotation following this case, post, 365. 66 The crucial words to be construed are those contained in the exception out of the and class of employee of "one whose employment | ture." See also Rennie v. Reid, 45 Scot. L is but casual." The word "casual" is in R. 814, 1 B. W. C. C. 324, and Ritchings v. common use. Its ordinary signification, as Bryant, 6 B. W. C. C. 183, [1913] W. C. shown by the lexicographers, is something & Ins. Rep. 171, where the facts were simiwhich comes without regularity, and is oc- lar and like decisions were made. One who casional and incidental. Its meaning may had been employed at several different times be more clearly understood by referring to to do odd jobs about small cottages, and its antonyms which are "regular," "sys- who at the time in question was hired to tematic," "periodic" and "certain." The whitewash some of them at a fixed price significance of this exception in our act is for the whole work, was treated as plainly emphasized by its contrast with the pro- a casual laborer in Bargewell v. Daniel, 98 visions of the English act, which is different L. T. N. S. 257. One employed to cut a in a material respect. As is pointed out in hedge for a gross price was held to be a Hill v. Begg [1908] 2 K. B. 802, at 805, its casual laborer in Toombs v. Bomford, 106 words descriptive of the workman are not L. T. N. S. 823, [1912] W. C. Rep. 229, 5 one whose employment is but casual, but one B. W. C. C. 338. To the same effect are "whose employment is of a casual nature, Knight v. Bucknill, 6 B. W. C. C. 160, 57 otherwise than for the pur- Sol. Jo. 245. [1913] W. C. & Ins. Rep. 175; poses of the employer's trade or business." Johnston v. Monasterevan General Store Co. This difference in phraseology cannot be 42 Ir. Law Times, 268, [1909] I. R. 108, 2 treated as unintentional, but must be re- B. W. C. C. 183; Cotter v. Johnson, 45 Ir. garded as deliberately designed. See Re-Law Times, 259, 5 B. W. C. C. 568. See port of Massachusetts Commission on Com- also O'Donnell v. Clare County Council, 47 pensation for Industrial Accidents, 53. Ir. Law Times, 41, 43, [1913] W. C. & Ins. Manifestly its effect is to narrow the scope¦ Rep. 273, 6 B. W. C. C. 457; M'Carthy v. of our act as compared with the English Norcott, 43 Ir. Law Times, 17. act. No one whose employment is "casual" It is argued that "or" in the clause can recover here, while there one whose em- quoted from part 5, § 2, should be conployment is "of a casual nature" comes with-strued to mean "to wit," or identity with in the act, provided it is also for the pur- or explanation of that which goes before. pose of the employer's trade or business. It Sometimes it is necessary to attribute this is possible that a distinction as to the char-signification to the word in order to effectacter of the employment may be founded upon the difference between the modifying word "casual" used in our act, and the words "of a casual nature" in the English act. The phrase of our act tends to indicate that the contract for service is the thing to be analyzed, in order to determine whether it be casual, while in the English act the nature of the service rendered is the decisive test. This distinction appears to have been made the basis of decision in Knight v. Bucknill, 6 B. W. C. C. 160, [1913] W. C. & Ins. Rep. 175, 57 Sol. Jo. 245. This consideration is to be noted because the 'English act was followed closely in many respects by our act, and hence even slight differences of phraseology may be assumed to have significance. uate the plain legislative purpose. Com. v. Grey, 2 Gray, 501, 61 Am. Dec. 476; Brown v. Com. 8 Mass. 59. It often is construed as "and" in order to accomplish the intent manifested by the entire act or instrument in which it occurs. This frequently is necessary in the interpretation of wills. McClench v. Waldron, 204 Mass. 554, 557, 91 N. E. 126; Clarke v. Andover, 207 Mass. 91, 96, 92 N. E. 1013. It is not synonymous with "and" and is to be treated as interchangeable with it only when the obvious sense requires it, or when otherwise the meaning is dubious. But the word "or" in its ordinary use and also in accurate meaning is a disjunctive particle. It marks an alternative, and not a conjunctive. It indicates one or the other of two or sev But even the decisions under the English eral persons, things, or situations, and not act are plain to the effect that employ a combination of them. Com. v. Keenan, ment such as that which existed in the 139 Mass. 193, 29 N. E. 477; Galvin v. case at bar there would be treated not only Parker, 154 Mass. 346, 28 N. E. 244; Dumont as casual in the respect of the contract for v. United States, 98 U. S. 142, 25 L. ed. hiring, but also casual in its nature. In 65. It is construed as having a different Hill v. Begg [1908] 2 K. B. 802, 24 Times meaning only when the context and the L. R. 711, 77 L. J. K. B. N. S. 1074, 99 L. main purpose to be accomplished by all the T. N. S. 104, 52 Sol. Jo. 581, the employ- words used seem to demand it. This is not ment of one who cleaned the windows of a such a case. It is impossible to say that private dwelling house whenever needed, at the legislature did not intend to employ irregular intervals of about six weeks, for the word in its common significance. Ina period of two years, but without regular deed, from what has been said, and especialengagement, was held to be "of a casual na-ly from the deliberate use upon this point of different words from those of the Eng-, the past. Each was entirely free to make lish act, which our act follows in so many particulars, the opposite conclusion is nec essary. It would be difficult to conceive of employment more nearly casual in every respect than was that of the employee in the case at bar. The engagement was for a single day and for one occasion only. It involved no obligation on the part of the employer or employee beyond the single incident of the work for four or five hours at the college. That would have had its beginning and ending, including the outward and returning journeys (but for the unfortunate accident), within a period of less than twenty-four hours. The relation between the waiter and the caterer had no connection of any sort with any events in other arrangements for the future, untrammeled by any express or implied expectations of further employment. The employment was not periodic and regular, as in Gillen's Case, 215 Mass. 96, post, 371, 102 N. E. 346, and in Dewhurst v. Mather [1908] 2 K. B. 754, 77 L. J. K. B. N. S. 1077, 99 L. T. N. S. 568, 24 Times L. R. 819, 52 Sol. Jo. 681, 1 B. W. C. C. 328. It was in the course of the regular business of the employer. But under our act that is an immaterial circumstance in view of the other fact that the employment was "but casual." The conclusion seems irresistible that the employment of the deceased was "but casual" within the meaning of those words in our act. Decree reversed. Annotation-Who are "casual" employees within the meaning of the workmen's compensation act. As to application and effect of workmen's compensation acts generally, see annotation, ante, 23. The difference between the phraseology of the English act and that of Massachusetts has been sufficiently set out in the opinion in GAYNOR V. STAND-| ARD ACCI. Ins. Co. An employee hired for no fixed duration of time and for no particular job, but hired only as the employer might wish work to be done, is not within the protection of the Massachusetts statute. Chevers's Case (1914) 219 Mass. 244, 106 N. E. 861 (teamster employed by coal dealer whenever he wanted him, but only at long intervals). A court cannot assume that an employment was only casual where the Industrial Board has found that the employment was not casual, and only excerpts of the evidence are contained in the record, although such excerpts tend to show that the employment was casual. King's Case (1915) 220 Mass. 290, 107 N. E. 959. Under the New Jersey act an employment is not "casual" where one is employed to do a particular part of a service recurring with some regularity, with a fair expectation of a continuance for a reasonable period (Sabella v. Brazileiro (1914) 86 N. J. L. 505, 91 Atl. 1032, 6 N. C. C. A. 958, long shoreman frequently called upon by defendant to serve him in loading and unloading the ship); nor is the employment of a workman for an indefinite period of time at so much a day (Scott v. Payne Bros. (1914) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. C. A. 682); an employment for an indefinite time to do piecework may be found not to be casual (Shaeffer v. De Grottola (1914) 85 N. J. L. 444, 89 Atl. 921, 4 N. C. C. A. 582, affirmed in N. J. L. -, 94 Atl. 1103). A charwoman employed regularly every Friday and every other Tuesday for over eighteen months is not in the casual employment of her employer. Dewhurst v. Mather [1908] 2 K. B. (Eng.) 754, 77 L. J. K. B. N. S. 1077, 99 L. T. N. S. 568, 24 Times L. R. 819, 52 Sol. Jo. 681, 1 B. W. C. C. 328. Window washers or cleaners have been held not to be in the regular employment, but only in the casual employment of their employers, so as not to be within the provisions of the compensation act. Hill v. Begg [1908] 2 K. B. (Eng.) 802, 77 L. J. K. B. N. S. 1074, 99 L. T. N. S. 104, 24 Times L. R. 711, 52 Sol. Jo. 581; Ritchings v. Bryant [1913] W. C. & Ins. Rep. (Eng.) 171, 6 B. W. C. C. 183. The work of cutting down or lopping off trees, which is done by a workman incidentally in connection with other work, is casual. M'Carthy v. Norcott (1908) 43 Ir. Law Times, 17; Knight v. Bucknill [1913] W. C. & Ins. Rep. (Eng.) 175, 57 Sol. Jo. 245, 6 B. W. C. C. 160. But a workman employed each season for several weeks or even months at a time, to do work in the employer's woods cutting underwood, trimming trees, etc., and paid by the week, not losing any time because of rain, is not a casual laborer. Smith V. Buxton INDUSTRIAL COMMISSION OF WIS- the death of one of plaintiff's employees for CONSIN et al., Appts. (154 Wis. 97, 142 N. W. 271.) Master and servant workman's compensation act wife in foreign countries living together. 1. A wife who was left in a foreign land when her husband came to this country is within the provisions of a workman's compensation act providing a benefit for persons wholly dependent on an employee killed in service, that a wife shall be con clusively presumed to be solely and wholly dependent upon her husband, with whom she was living at the time of his death, if he sends her money for her support, although he has been here several years, and no definite plan for reunion exists. For other cases, see Master and Servant, II. a, 1, in Dig. 1–52 N. S. Same determination by Commission. 2. Whether or not a servant accidentally killed in his employment, and his wife, whom he left in a foreign country, were living together, is a question of fact, to be determined by the Commission under the workmen's compensation act. which it was alleged to be responsible. Reversed. Statement by Kerwin, J.: This is an appeal by defendants from a judgment entered February 14, 1913, setting aside an award of the Industrial Commission made July 1, 1912. The award provided that plaintiff pay to the defendant Jela Nevadjic the sum of $2,100 on account of the death of her husband by reason of inin the employ of the plaintiff. The award juries accidentally sustained by him while was based on a finding of the Commission that Jela Nevadjic was living with her husband at the time of his death. The circuit court decided first that, although the finding of the Commission that Jela Nevadjic was living with her husband at the time of his death was erroneous, still the award should. be confirmed because there was evidence to support the Commission's finding of total dependency without regard to the statutory presumption. A motion for rehearing was made in the For other cases, see Master and Servant, II. circuit court, based upon an affidavit of the a, 1, in Dig. 1-52 N. S. plaintiff's attorney, setting forth correman and spondence with the chairman of the Industrial Commission, showing that the Commission "determined that the wife was total 3. The court must determine what con stitutes living together under a provision in a workman's compensation act providing that a wife shall be presumed wholly de pendent upon her husband with whom she is living at the time of his death. For other cases, see Courts, 1. c, in Dig. 1-52 N. 8. ly dependent simply because of the statutory presumption following its finding of fact that Nevadjic was living with his wife at the time of his death." On rehearing, the circuit court adhered to its decision that Jela Nevadjic was not living with her husband at the time of his death, but found' that the Commission's finding of total dependency was based solely upon the statutory presumption, and further found that in making such findings and the award the Commission acted without or in excess of its powers, and entered judgment setting aside the award of the Commission. The Industrial Commission made the following findings: "That on February 25, 1912, while in the employ of the respondent. [plaintiff here], one Prokopia Nevadjic accidentally sustained personal injuries by reason of a car of ore being dumped upon him, from the result of which he died, at Mayville, Wisconsin; that the said deceased, Prokopia Nevadjic, came to this country some three years and three months prior to his death, leaving in his native country, Austria-Hungary, in the province of Korenica, a wife and one child; after coming to this country, the said deceased, Prokopia Nevadjic, did not return to his wife, but did occasionally send her money, and on February 8, 1912, shortly before his death, sent her the sum of $21; that deceased could not write, and the wife of deceased could not write, but they corresponded with each other through the aid of friends; and we find from these facts that the deceased, Prokopia Nevadjic, and the above-named Jela or Jelena Nevadjic, his wife, were living together at the time of the death of said deceased, and the said Jela or Jelena Nevadjic was solely and wholly dependent for support upon the deceased, Prokopia Nevadjic." It also appears from the evidence that Prokopia Nevadjic came to Mayville and "was employed by the Northwestern Iron Company on the 7th of November, 1911;" that he sent $30 to his wife "when he first came to Mayville;" that he said if "I don't send money every three months my wife can't make a living;" that he sent $21 to his wife February 8, 1912, an interval of exactly three months from the time of his previous remittance. Messrs. Kahn & Murphy, for appellant Nevadjic: The widow was living with her husband at the time of his death. Ex parte Gilmore, 3 C. B. 967; Blackwell v. Pennant, 9 Hare, 551, 22 L. J. Ch. N. S. 155, 16 Jur. 420; Cowan v. Cowan, 10 Colo. 540, 16 Pac. 215; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Shaw v. Shaw, 98 Mass. 158; Bristol v. Rutland, 10 Vt. 574; Carey's Appeal, 75 Pa. 201; Fry's Election Case, 71 Pa. 302, 10 Am. Rep. 698; Hayes v. Hayes, 74 Ill. 312. Messrs. Walter C. Owen, Attorney General, and Byron H. Stebbins, First Assistant Attorney General, for appellant Industrial Commission: A mere temporary absence does not terminate the living together, because there is no such intent. Ex parte Gilmore, 3 C. B. 967; Phillips v. Phillips, 22 Wis. 256: Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166: Williams v. Williams, 122 Wis. 27, 99 N. W. 431; Burk v. Burk, 21 W. Va. 445; Miller v. Sovereign Camp, W. O. W. 140 Wis. 505, 28 L.R.A. (N.S.) 178, 133 Am. St. Rep. 1095, 122 N. W. 1126. The presumption is that husband and wife "are living and cohabiting together." Smith v. Smith, 35 Ind. App. 610, 74 N. E. 1008; Jonas v. Hirshburg, 18 Ind. App. 581, 48 N. E. 656; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587. The Commission had "reasonable ground for the decision made." Clancy v. Fire & Police Comrs. 150 Wis. 630, 138 N. W. 109; State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis 468, 107 N. W. 500; Minneapolis St. P. & S. Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 17 L.R.A. (N.S.) 821, 116 N. W. 905. The question was one of fact. Traveler's Ins. Co. v. Hollauer, 131 Wis. 371, 111 N. W. 527; Cole v. Cole, 27 Wis. 531; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Morrison v. Madison, 96 Wis. 452, 71 N. W. 882; Ennis v. M. A. Hanna Dock Co. 148 Wis. 655, 134 N. W. 1051; Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132. Mr. Edward G. Wilmer, for respondent: The question of dependency and the extent thereof is always one of fact, and the survivors, including the widow, husband, or children, must establish their claims to compensation by proving the extent of their dependency as a matter of fact. New Monckton Collieries V. Kelling [1911] A. C. 648, 80 L. J. K. B. N. S. 1205, 105 L. T. N. S. 337, 27 Times L. R. 551, 55 Sol. Jo. 687 [1911] W. N. 176, 4 B. W. C. C. 332. "Living together as husband and wife" requires dwelling together, cohabiting. 18 Am. & Eng. Enc. Law, 823; Yardley's Estate, 75 Pa. 207; Sullivan v. State, 32 Ark. 187; State v. Intoxicating Liquors, 54 Me. 565; Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533; Dutcher v. Dutcher, 39 Wis. 651; Mutual Ben. L. Ins. Co. v. Robison, 22 L.R.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 723; Paltrovitch v. Phoenix Ins. Co. 68 Hun, 304, 23 N. Y. Supp. 38; Thomas v. State, 28 Tex. App. 300, 12 S. W. 1098; Burnett v. State, 44 Tex. Crim. Rep. 226, 70 S. W. 207; Hanson v. Hanson, 111 Mass. 158; Kendall v. Miller, 47 How. Pr. 446. Workmen's compensation acts ought to be construed not in a technical, but in a popular, sense. Smith v. Coles [1905] 2 K. B. 827, 54 Week. Rep. 81, 22 Times L. R. 5, 75 L. J. K. B. N. S. 16, 93 L. T. N. S. 754; Rogers v. Cardiff Corp. 8 W. C. C. 51, [1905] 2 K. B. 832, 54 Week. Rep. 35, 22 Times L. R. 9, 75 L. J. K. B. N. S. 22, 4 L. G. R. 1, 70 J. P. 9, 93 L. T. N. S. 683; Adams v. Shaddock [1905] 2 K. B. 859, 54 Week. Rep. 97, |