known it will be advisable to do at these times, is not casually employed." Mr. Ruegg suggests that if one should. employ a workman to work in his garden one day, or half a day, a week, subject to the former's control, such workman is not casually, but regularly employed at recurring ascertained times. And although, in this illustration, if the times are not strictly defined, but the contract is that the workman shall do the work required in the garden as it is required from time to time, no fresh contract or engagement being contemplated between the parties, though a discretion may be left in the workman to select the time or times of work, the employment is not casual, for though the work may be of a casual nature, the workman is under contract to do it as and when it arises. In this view, much must depend upon the certainty of the work recurring at times which, though they cannot be fixed definitely, yet can be fixed generally, and the work when it arises having to be done by the same person. If a workman is employed to repair a roof which has been damaged by a storm, his employment is of a casual nature, and it would make no difference if his contract were to require that he always make repairs. necessitated by such an occurrence, because the periods when the work will be required cannot be ascertained even approximately, nor is there any certainty that it will ever be required. It will be seen that the question depends upon the frequency and degree of certainty of the employment. If one employs a man to carry his grip from the railway station to his home, the employment is casual. But if the contract is that the man is to meet a given train daily, and to carry the grip to the house daily, the employment ceases to be casual. (5) Ruegg, Employers' Liability & Workmen's Compensation (8th ed.) p. 276. However, the mere fact that one habitually calls for the same man to carry his grip whenever he returns from a journey does not change the casual nature of the employment; there being nothing fixed as to either frequency or degree of certainty, there being a new contract of employment each time upon his return. From this consideration it appears that no fixed rule can be laid down for the determination of what is or is not casual employment. If the question depends upon the frequency and degree of certainty of the employment, the unanswerable question arises, How frequent and with what degree of certainty must the employment be to take it out of the rule as to casual employment? Each case, therefore, must be decided largely upon its own facts, but in reaching a decision in any particular instance, decided cases are of great value for the principles of law stated, and in showing how those principles are applied to a given state of facts. Employment of Short Duration.—The defendant commenced the construction of a drive or runway from a viaduct to the second floor of its freight house, the latter also being in process of construction. The work was started by regular employes of defendant, but after a conference with the business agent of the Structural Ironworkers' Union, four union men were sent from union headquarters to complete the work; the claimant being one of the four. While so employed the claimant was injured, and the only defense to the claim was that the employment was casual. The evidence showed that this work was completed in three or four days; that defendant had in its regular employ ironworkers who started the work in question; that railroads now and then call in structural ironworkers from union headquarters to do work of this kind, but that claimant had never before been employed by defendant; that claimant was employed only for this particular job. It was held that the employment was casual, and that recovery could not be had." In this respect the Court declared: "The putting on of these union ironworkers for this temporary work only bears on the character of the contract of employment. The character of the work was fixed by the fact that it was a part of the railroad work. The character of the contract of employment, as to whether it was casual or not, was fixed by the contract of hiring -that is, the contract could have been of such a nature that claimant would have been a regular employe of the railroad as a structural ironworker, or it could have been of such a nature that he was only a casual employe for this particular job— and the question to be determined here is which kind of contract was, in fact, made." Where, however, one was employed for an indefinite period at a fixed wage per day, on the erection of a constructural steel building, and was likely to be retained for some time, and as long as the work was unfinished, his employment was not casual; he being employed in the regular business of the employer.7 Employments of Short Duration Requiring Fresh Hiring. The first case involving this question arising under the English Act was that of Hill v. Begg.s In that case it appeared that a man who earned his living by doing odd jobs was employed by the occupier of a private house to clean windows. There was no agreement for either permanent or periodic employment, though the same man was usually employed, the custom being to send for him when the windows required cleaning. It was held that this employment was of a casual nature. Here there was no contract, express or implied, to do the work at recur (6) Chicago G. W. R. Co. v. Industrial Com'n., 284 Ill. 573, 120 N. E. 508, 18 N. C. C. A. 132. (7) Scully v. Industrial Com'n., 284 Ill. 567., Atl. 927. (8) (1908) 2 K. B. 802, 77 L. J. K. B. 1074, 99 L. T. 104, 24 T. L. R. 711, 1 Butterworth's W. C. C. 320. ring times. Each employment necessitated a new contract. General Hiring for Short Periods of Regular Recurrence.-A charwoman was in the habit of working for a certain employer on Friday in every week and on Tuesday in alternate weeks. This had continued for a period of eighteen weeks prior to the happening of the injury in question. She went under a general understanding. without special request on each occasion Held, that the employment was not casual, but of a regular nature, for definite periods. perfectly well known to both employer and employe." The work of a man who was employed to look after the delivery of glass for 4 building under process of construction, was held not to be casual. The Court said. "In the instant case it is fair to suppose that the general contractor knew how much glass was to be delivered at the building. It became necessary in the interest of the business of the general contractor to have the delivery of the glass looked after and supervised, and claimant was employed for that purpose; that, as the glass was to be delivered as the work progressed on recurring occasions, it certainly cannot be said any of the necessary work to be done in furthering the job or enterprise was casual. for it was sure to occur and recur in the operation of the job. There was an element of certainty in the work recurring at times which, though they could not be fixed definitely, yet were fixed generally by the agreement to look after and assist in unloading the glass as it arrived from time to time."10 Fair Expectation of Recurrence of Work -An employment is held not to be casual where one is employed to do a particular part of a service recurring somewhat regu (9) Dewhurst v. Mather, (1908) 2 K. B. 754. 24 T. L. R. $19, 1 Butterworth's W. C. C. 328. (10) Dyer v. James Black M. & C. Co., 192 Mich. 400, 158 N. W. 959. d 1 0 larly, with the fair expectation of the continuance for a reasonable period.11 A man was employed by the road overseer of a county council to draw stones from a quarry. His wages were at a fixed rate per day, and he was to get work now and again when there would be work to do, but there was no objection to his working for someone else when he was not wanted badly by the county council. It was held that the man came within the Act and was entitled to compensation for an injury received.12 Assisting at One Job Only.-The employers, who were engaged in the transfer and storage business, operated a large number of wagons, and employed many drivers. and helpers, and extra men were picked up when occasion required. The claimant had been working for a long time as a carpenter, but on this occasion, one of the employers, knowing that he was idle, told him that he might make a few dollars by aiding them. The job was termed "a pickup job," and was not completed that day. He was paid for the day's work, but returned next morning and helped to complete the job. He was then told to go with the teamster to help move a washing machine, and while moving the machine his hand was injured. In holding that the employment was casual the Court said: "He was employed for no definite time. He did not intend to become a regular employe and the plaintiffs in error did not intend him to be a regular employe. He understood that the employment was a pick-up job, and they so understood it. He was not on the regular pay roll, though the clerk who worked on the pay roll testified that if he had known that claimant was coming the next day he would have put his name on the pay roll in order to get the money from the bank, as Saturday was pay day. When that day's work was done there was no Waiter Serving at One Banquet.-A waiter employed by a caterer to serve at a banquet was injured while preparing for the banquet. He had never been employed prior to that time by that caterer. The custom of the catering business was that such banquets were served by waiters secured for each particular occasion. In declaring that such employment was but casual, the Massachusetts Supreme Court said: "It would be difficult to conceive of employment more nearly casual in every respect than was that of the employe in the case at bar. The engagement was for a single day and for one occasion only. The relation between the waiter and the caterer had no connection of any sort with any events in the past. Each was entirely free to make other arrangements for the future, untrammeled by any express or implied expectations of future employment. The employment was not periodic and regular. 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."14 Extra Help Employed When Needed.-A young man was employed from time to time to work as helper in a butcher shop. From September 19 to Thanksgiving Day, 1916, he worked every evening after school and all day Saturday. From Thanksgiving Day until the Christmas vacation he did not work there at all. From January 1 up to the time of the injury on June 4, 1917, he worked at various times, Saturdays mostly, though not every Saturday; sometimes two days in the week. When It may be assumed that the Court in this case considered that the rather long period of time during which this young man was employed for short periods at more or less regular intervals, took the employment out of the casual kind, and fixed the general nature of the same with sufficient degree of certainty. Regular Employe Assisting at Unusual Work. A corporation, engaged in the manufacture of automobiles, employed the deceased as a mechanic at its warehouse, at a fixed salary per week, and at the same rate for overtime. Races were scheduled for Saturday and Sunday for the purpose of permitting different companies to promote the names of their cars, and get them before the public. Each company entering cars in the races had assigned a space near the starting point, called a "pit," and two men were in each pit for the purpose of handing out extra parts, gasoline, etc. On the day of the accident deceased, who was assisting in the pit, got out of the pit and was standing on a fence beside the track. One of his employer's cars stopped near the pit, and he ran out towards it and was struck and killed by another car. Overruling the contention that the employment of deceased was casual, the Court said: "He was a regular employe of appellant, and his work was not materially different at the time of the accident from that which he ordinarily did. He was a mechanic, kept cars in proper condition, and was working in the regular course of such employment at the time of the injury; therefore, his employment was not casual." Work Mere Incident of Regular Employment. The claimant was a laborer in the employ of a sewer builder, his duties con (15) Jordan v. Weinman, 167 Wis. 474, 167 N. W. 810. (16) Frint Motorcar Co. v. Industrial Com'n., Wis. 1919, 170 N. W. 285. sisting chiefly of opening trenches from houses to street. He had been so employed for about five months. At the time in question, however, he was riding in an automobile, in which there was also material, from one job to another, and was injured when a street car collided with the autoImobile. In holding that the employment was not casual, the Court said: "De Vito's employment was not casual, as argued by the plaintiff in error. His employment cannot be said to have been uncertain, haphazard, irregular or incidental as distinguished from stated or regular. The word 'casual,' in the statute, has reference to the contract of service, and not to the particular item of work being done at the time of the injury. The evidence clearly discloses that De Vito had been regularly employed by plaintiff in error for five months at his business or occupation of digging or excavating sewers, etc. Within the meaning of the statute he was engaged at that very work or occupation when he was injured, although at the particular time of his injury he was only doing an act or work that was a mere incident of his employment."" Employe on Trial.-A few days before the accident which resulted in his death, deceased applied to defendant for employment as chauffeur, representing himself as competent. He was told to come to work the following Monday morning when he would be given a trial, and if he proved satisfactory he would be given steady em| ployment for about four weeks at a stated salary. During his first day of work, and while accompanied by an old employe who was to pass on his competency, deceased was accidentally killed. The old employe testified that deceased was competent, and that he would so have reported to defendant. It was held that the employment was not casual; that it was of no consequence 17) Scully v. Industrial Com'n., 284 11. 567. 120 N. E. 492. that deceased's name had not as yet been moved prior to April 1; that on February placed on defendant's pay roll.18 URNER, J. For the purposes of the demurrer to the bill of complaint in this case, it is admitted that the plaintiff company, which is engaged in the business of growing and selling fruit trees, sold and conveyed to the defendant a tract of land on which were young apple and pear trees intended for sale to the plaintiff's customers; that by special agreement the right to remove the trees was reserved to the plaintiff, provided the removal should be completed not later than the spring of 1919; that on February 17, 1919, the defendant wrote the plaintiff a letter to the effect that, if the trees could not be removed by April 1, an arrangement might be made to have them remain on the land another year, to which the plaintiff replied, by letter dated February 19, that the trees would all be re 27 the plaintiff was notified by the defendant not to remove any more of the trees, and thereafter continued to prohibit their removal until the filing of the bill and the issuance of the preliminary injunction on March 8; that the defendant wrote the plaintiff on March 6, stating that he would lease the land to some other party if the plaintiff did not indicate a desire to lease it by March 10, and that the prompt and careful transplanting of the trees was necessary to render them available for the market. The bill alleges that the defendant's interference with the removal of the trees would cause irreparable injury, unless restrained by injunction, and that the plaintiff has no adequate remedy at law. The demurrer to the bill is based solely on the theory that there is an adequate legal remedy for the injury of which the bill complains. This theory was not sustained by the court below, and the demurrer was overruled by an order which is the occasion of the pending appeal. That the reservation of the trees, though made by parol, was valid and effective, is definitely settled by the case of Willard v. Higdon, 123 Md. 447, 91 Atl. 577, Ann. Cas. 1916C, 339. The effect of the reservation was to retain the ownership of the trees in the plaintiff, and to secure it the right to remove them from the land within a specified time. The defendant's action, as described in the bill, violated the plaintiff's alleged right, while it was being exercised in accordance with the agreement by which it was reserved. Accompanying the defendant's refusal to permit the trees to be taken from the land was the statement of his intention to dispose of the property by lease. Under such circumstances it could not be properly held that an action at law would have afforded the plaintiff an adequate remedy. The specific trees in question were its property, and were required to be promptly and skillfully removed for the purposes of its business. A suit for damages or an action of replevin would not have satisfied such an interest and exigency. The contemplated lease of the property, if made to one without notice that the trees were reserved to the plaintiff, would have seriously impeded the enforcement of his claim in a court of law by any form of action. Besides, the right which the plaintiff asserts is of an equitable nature, the legal title to the soil and the trees being in the defendant, and a court of equity has ample authority to protect such |