
    MABEL EICHHOLZ v. WILLIS S. SHAFT AND ANOTHER.
    
    March 12, 1926.
    No. 25,036.
    Domestic servants not within terms of Workmen’s Compensation Act.
    1. Persons employed exclusively in caring for the home and serving the members of the family therein are not covered by the Workmen’s Compensation' Act. The maintenance of a home is not a trade, business, profession or occupation for pecuniary profit, and was not intended to be burdened by the loss or damage which may result from accidental injuries to servants therein.
    Housewife, maintaining summer home, not liable under act for death of caretaker.
    2. A housewife, in maintaining a summer home, is not engaged in a trade, business, profession or occupation within the meaning of the act, so as to render either her or her husband liable to pay compensation for the death by accident of the caretaker of such home.
    Conduct of respondents prevented dismissal of writ.
    3. Informal service of the writ of certiorari on the adverse party was made within 60 days from notice of the decision. The conduct of respondents thereafter was such as to lead relator to believe that no advantage would be sought by them because of lack of service.
    Workmen’s Compensation Acts, C. J. p. 46 n. 29; p. 47 n. 33; p. 120 n. 13. -
    Certiorari to review the decision of the Industrial Commission denying compensation in a proceeding brought under the Workmen’s Compensation Act.
    Affirmed.
    
      Giblin & Manfhey, for relator.
    
      O’Brien, Horn & Stringer, for respondents.
    
      
       Reported in 208 N. W. 18.
    
   Holt, J.

By certiorari a decision of the Industrial Commission denying a claim made under the Workmen’s Compensation Act is presented for review.

The facts are these: The claimant and appellant is the widow of Max N. Eichholz, who on November 30, 1923, was drowned in Lake Vermilion while attending to some traps he had set at various points along its shore. He broke through the ice some 20 or 30 feet from shore, near the boundary- line of a 60-acre tract owned by the respondent E. May Shaft, the wife of the other respondent. Mr. Shaft is in the manufacturing business at Faribault, this state, where the family resides. The tract above mentioned at Lake Vermilion was acquired for a s-um-mer home. While the title is in Mrs. Shaft, Mr. Shaft has much to do with improving, financing and managing the home. The claim is that the money needed and expended for buildings has been advanced by Mr. Shaft as a loan to his wife. At any rate, this tract is used exclusively as a summer home for the family. There are several buildings, one the owner’s cabin, costing from $5,000 to $6,000, two barns, store house, ice house, boat house and a caretaker’s four-room cottage, all built of logs. No building is designed or used for renting purposes. The land is very rocky and unfit for cultivation, except small patches selected for flower and vegetable gardens. It was deemed desirable to have a caretaker of the place, who would live upon it the year round.

September 15, 1922, Mrs. Shaft made a written contract with Max N. Eichholz as caretaker, agreeing to pay him $50 per month, and the use of the caretaker’s cabin, dead and down timber for fuel purposes, and in -consideration thereof Eichholz and his family agreed to render these services: To keep the land, buildings, tools and premises -clean and in good appearance; to remove only such trees and shrubs as the owner directs; to -supply- the owner with dry wood cut and piled for grate and cook stove; to plant and till garden spots with such fruits and vegetables as may be grown in that locality and supply the owner each morning with freshly gathered fruits and vegetables; to keep at Ms own expense three cows and deliver to the owner each morning and evening fresh milk and cream to the extent of one-half obtained from the cows; to keep the cows by fence away from the cabins, spring and beach; to keep and care for one dog and one goat for the owner; to plant and care for flowers and shrubs and potted plants around and in the owner’s cabin; to put on and take off screens and keep floors and furnishings of owner’s cabin clean; to keep boats, boat house and dock clean and do such painting as may be suggested by the owner; to put up sufficient ice and deliver to the owner as needed; to keep beach and spring clean; to clean and “steak” such fish as the owner may have on hand, and assist the owner in any work for the beautifying and upkeeping of the property; to keep an accurate account of all vegetables, milk and cream sold and to share alike with the owner the proceeds, the owner to decide what shall be sold; to protect to the best of his ability all the property of the owner including furnisMngs, bedding supplies and tools and not to vacate the property overnight, without the owner’s consent; and to quietly vacate if the agreement is terminated by notice.

The evidence shows that Mr. Shaft sent three bear traps, with which Mr. Eichholz hoped to catch bears so that the former might have a fur rug for the cabin, but the traps were too small and attempts to trap either bear or wolf were vain. Mr. Eichholz owned a number of small traps, and it appears that he trapped weasels and skunks. Seven or more weasel skins were sent to Mrs. Shaft, out of which a' collarette was made. There is some claim that the caretaker was1 directed to kill off destructive animals, but the showing is not persuasive that Mr. Eichholz in setting his traps, on or away from the premises of Mrs. Shaft, was in the line of his duty as the servant of either herself or husband. The inference is rather that the skins sent were a present and that, if Mr. Eichholz had any time to spare from the duties he had expressly undertaken to perform in the written contract or specially been requested to do by Mr. Shaft, he was to use it for his personal profit or pleasure. He had no certain hours or days during which his time must be given to the service of the Shafts.

It may be difficult to classify tbe deceased in bis relations to tbe Shafts and bis work. In certain aspects be enjoyed tbe privileges of a tenant, and did wbat might be called farm work. Then again be bad menial duties to do, such as generally fall to tbe lot of domestic servants. Tbe findings of tbe referee, approved by tbe Industrial Commission, were: (1) That this lake property was maintained by tbe Shafts as a summer home, and not for profit, and was not in any way connected with tbe usual business of Mr. Shaft, a shoe manufacturer; and (2) that tbe deceased was a domestic servant of respondents. Tbe evidence compels a finding such, as tbe first. As to tbe second there may be doubt. While it is undisputed that tbe employment of tbe deceased was confined to tbe care of that home and ministering to tbe needs and comforts of tbe Shaft family in that home, all bis duties may not come within wbat in law or general understanding are termed “domestic.” But, even conceding it to be wrong, tbe decision of tbe commission nevertheless is right.

Tbe object of tbe Workmen’s Compensation Act must be kept in mind in construing and applying its provisions. It was.to saddle tbe industries with tbe loss that resulted to tbe employes therein from accidental injuries received in tbe work. In California tbe compensation act was “held constitutional only because it imposes a charge, not upon tbe individual employer, but upon tbe branch of industry in which be is engaged, and gives tbe employer opportunity of protecting himself by proper insurance.” Miller & Lux Inc. v. Industrial A. C. 179 Cal. 764, 178 Pac. 960, 7 A. L. R. 1291; Western Ind. Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. Industries are carried on for profit, and .it was felt that they should and could bear tbe loss from accidental injuries to tbe workmen engaged therein as part of their expenses; but those engaged in farming were not deemed well able to bear tbe burden, hence farm laborers were excluded, and a farmer, until lately even if be desired, could not come in under tbe act; and this is significant of a purpose also to except from its operation the accidental injuries to employes engaged in maintaining tbe home. This conclusion is strengthened because of tbe exclusion from tbe operation of tbe act of “persons whose employment at tbe time of tbe injury is casual, and not in tbe usual course of tbe trade, business, profession or occupation of bis employer.” Gr. S. 1923, § 4268.

Tbe upkeep and care of a home for one’s self and family are not in tbe category of a trade, business, profession or occupation, as generally understood. A home is not established and maintained in tbe expectation of pecuniary gain. Such a venture is solely an expense. It therefore did not come within tbe original purpose of tbe act to include tbe home as an industry to be burdened with tbe accidental injuries to servants therein engaged. There is no reason why, if tbe housemaid is excluded, tbe charwoman, who might be engaged to come at stated times for a year to work in tbe home, but who does not live in tbe family, should be included in tbe act. Maintaining a home, whether in an apartment or in spacious grounds with separate quarters thereon for tbe servants employed in administering to tbe comforts of tbe family, does not come within tbe definition of tbe Workmen’s Compensation Act, however liberally construed, as being a part of tbe trade, business, profession or occupation of the employer, hi or is it an industry.

We have held that, however casual tbe employment, if it be in tbe usual course of an employer’s business, tbe employe comes within tbe law. State ex rel. City of Northfield v. District Court, 131 Minn. 352, 155 N. W. 103, Ann. Cas. 1917D, 866; State ex rel. Lennon v. District Court, 138 Minn. 103, 164 N. W. 366. Also that a person may be engaged in more than one enterprise to gain a living, and an employe in any one is protected. Benoy v. Torkelson, 161 Minn. 223, 201 N. W. 312. Persons engage in a trade, business, profession or occupation for profit, or as a means to gain a livelihood, but not so in establishing and maintaining a home; and therefore tbe employment as caretaker, within tbe definition above quoted, is not within tbe act.

There is no apparent reason for placing tbe maid, who sleeps in tbe employer’s home and does tbe work inside tbe building, in a different position to this law than tbe caretaker of tbe outside of the building who sleeps in a separate building on the premises, and perhaps operates the heating plant for the home which may also be apart therefrom. They are both servants whose services are entirely devoted to the upkeep of the home and the comfort of the members of the family. Nor can any distinction be made between the temporary summer home and the town home of a family. The keeping of this modest acreage of mostly rock on the shores of Vermilion as a summer home cannot, without doing violence to the language, be construed as a business or occupation, or a side line thereof. It is not to be compared to the. 6,000-acre ranch, where the employe injured was a member of a crew operating a portable sawmill for cutting “down” timber, and was allowed compensation, Pierce v. Industrial Com. 179 Wis. 189, 190 N. W. 80.

Nor does the instant case come within that of Klein v. McCleary, 154 Minn. 498, 192 N. W. 106, where the injured employe recovered because the employer was held to be engaged in operating a summer resort for profit, even though a part of the employe’s work was farm labor upon the premises connected with the resort. Nor is it a case like O’Rourke v. Percy Vittum Co. supra, page 251, where a steady employe of the company in its ordinary business was directed by its manager to do some service outside its business, it not appearing that the work was not the company’s so far as the employe was concerned.

It might be urged that Mrs. Shaft’s sole occupation was that of a housewife, conducting the home, and thereforé the deceased was employed by her in her usual occupation. But we think a housewife is not an occupátion within the meaning of the compensation act, since that work pertains exclusively to the management of the home. Furthermore, in the maintenance of the home the husband and wife are one. The one acts for the other. No matter who is the legal owner of the home, the running thereof is not an industry nor a business, trade, profession or occupation within the purview of the Workmen’s Compensation Act. And we hold that employes who are employed exclusively in the care of the family home and in serving the members of the family are not within the act, and were not intended to come within it.

The workmen’s compensation acts of the various states are not alike. That of Pennsylvania is not the same as ours, but the case of Marsh v. Groner, 258 Pa. St. 473, 102 Atl. 127, L. R. A. 1918F, 213, reaches the conclusion that a person employed- by a housewife to aid in enlarging the home by an extensive addition thereto was not employed in the “regular course of the business of the employer.”

The above considerations lead to an affirmance and it becomes unnecessary to determine whether the finding is strictly accurate that the deceased was a domestic servant. Not much aid can be had from the Texas decisions cited, involving the peculiar wording of a criminal statute, viz.: Wakefield v. State, 41 Tex. 556; Richardson v. State, 43 Tex. 456; Waterhouse v. State, 21 Tex. App. 663, 2 S. W. 889; nor from Hall v. Philadelphia Co. 72 W. Va. 573, 78 S. E. 755, dealing with a contract wherein it became necessary to define the meaning of the word “domestic” and “domestic use;” nor from Toole Furniture Co. v. Ellis, 5 Ga. App. 271, 63 S. E. 55, involving the construction of a statute making the master liable for the torts of the servant. In the same class may be placed In re Howard (C. C.) 63 F. 263, touching the question whether an under-coachman was employed “strictly as a personal or domestic servant” within the purview of the act of Congress prohibiting immigrants to enter who are under contract to labor for others.

There was a motion to dismiss the writ on the ground that service was not made on respondents within 30 days or at all. The compensation procedure is that the writ of certiorari must be obtained and served on the industrial commission within 30 days from the service of the notice of the decisions upon the parties unless the time has been enlarged for cause. G. S. 1923, § 4320. It does not in terms prescribe that the opposing party shall be served with a copy of the writ. But the general statute relating to the writ of certiorari provides that it must be served upon the adverse party within the 60-day period within which it must be obtained after notice of the decision. G. S. 1923, § 9770. In this case after the 30-day period, but within the 60-day period, an informal written notice was given the adverse party. We think the conduct of respondents’ counsel was such thereafter as to now, after relator has gone to great expense to present the matter, preclude a dismissal.

The decision of the Industrial Commission is affirmed.

Stone, J., took no part.  