Respondent, Stewart, petitions for a rehearing, contending that the court's opinion was based upon a strained distinction between "cutting" wood and "splitting" wood that had been furnished him by his employer. Probably, the writer's crudity of expression was responsible for this interpretation of the language employed. The "cutting" of fire-wood delivered to one's premises unquestionably includes "chopping, splitting, sawing, whittling, breaking" or any other mode of adaptation to the end desired. *Page 176
The distinction drawn by the court was that between the "cutting" of the wood later stacked for petitioner's use and the "splitting" or handling of it by petitioner after he had segregated his supply from the stack, title to which stack was at all times in the employer.
However, the decision was not based upon "splitting" as opposed to "cutting," but upon the duty of the employer tofurnish petitioner wood for fuel. We held the employer's duty discharged when it had delivered the wood in the usual and customary form, stacked in proper lengths for petitioner's use. When petitioner withdrew his supply from the stack, the employer's ownership ceased and petitioner's began. To hold otherwise would be to invite a reductio adabsurdum. When petitioner withdrew wood from the stack for the purpose of splitting the same he ceased to be a workman within the meaning of the Workmen's Compensation Act, and the injury sustained did not arise out of and in the course of his employment. The splitting of the wood was for his own convenience and for his sole benefit.
The employer had furnished petitioner a house in which to live, and could exercise no whit of dominion over it. It was for the time petitioner's castle from which he could hurl defiance at every trespasser including the chief executive of the employer itself. To say that the "split" wood still belonged to the employer and that by reason of having to live on the premises owned by the employer, the performance of domestic chores was an execution or furtherance of the employer's business is a construction a careful study of no authority we have found permits. Such chores, when required by the employer to be performed for others than petitioner and his family, would have been an entirely different matter.
To pursue petitioner's argument to its logical end, it would have to be held that he was in the exercise of his employment when he packed the wood into the house, stuck it into the stove, removed the ashes, swept the floor of chance droppings, and dusted off the front steps, in all of *Page 177 which operations there would have been possibilities of stubbed toes, ripped nails, splinter-pierced fingers or scorched hands. The trouble with the case of Ocean Accident etc. Co. v.Pallero, 66 Colo. 190, 180 P. 95, is that the employer furnished its employee no wood at all, but indirectly set him to blasting it out of the forest. Haller v. City ofLansing, 195 Mich. 753, 162 N.W. 335, L. R.. A. 1917E, 324, is not in point at all. There, the employee at the noon hour went into a too-house to eat his meal, and while lighting his pipe ignited gas escaping from a container. InNorthwestern Iron Co. v. Industrial Com.,160 Wis. 633, 152 N.W. 416, 417, where it was announced that "To protect himself from undue and unnecessary exposure to the cold was a duty he owed his master as well as himself," the facts were that the accident occurred while the employee was engaged in the day's work, and had stepped aside to warm himself. In none of the cases cited did it appear that the employee was injured while performing around and about what was for the nonce his own vine and fig tree.
Petition for rehearing denied.
Budge, Varian and McNaughton, JJ., concur.
Givens, C.J., dissents.