The opinion
On the Merits
Before Warner, Chief Justice, and Rossman, Latourette and Perry, Justices.
PERRY, J.
For matters of convenience, the defendant will be designated in this opinion as the commission.
The plaintiff was injured on the 18th day of September, 1951. Thereafter he filed a claim with the *282 defendant commission, which claim was denied by the commission on the 8th day of February, 1952. On October 20, 1952, the plaintiff filed this action in the Circuit Court of Multnomah County, and at the close of plaintiff’s case the trial court sustained the defendant’s motion for involuntary nonsuit. From this ruling the plaintiff appeals.
The plaintiff alleged, and the facts show, that during plaintiff’s leisure time (when he had other employment), and on occasions when plaintiff had no other occupation, he was employed by one Arthur Clow as a general handy man. Mr. Clow would hire plaintiff on an hourly pay basis for various handy man jobs, such as, mowing the lawn, vacuuming the house, washing the windows, and mopping and cleaning the basement of his residence; he also, as the owner and operator of several apartment houses in the city of Portland, would, from time to time, hire the plaintiff on an hourly basis to do handy man work in and about the apartments. On the 18th day of September, 1951, the date of the claimed injury, Clow had employed the plaintiff on an hourly pay basis of sixty cents an hour for the purpose of cleaning and rust proofing the roof gutters on his private residence, Clow furnishing the necessary ladder, materials, and equipment; and on that date, while engaged in cleaning out the roof gutters, plaintiff fell from the ladder and received the injuries for which he seeks compensation.
It is the contention of the plaintiff that at the time of the accident both the plaintiff and his employer were engaged in a hazardous occupation as contemplated and encompassed in the Workmen’s Compensation Law of the state of Oregon.
The commission urges that a home owner engaged in repairing his own residence is not “an employer *283 engaged in a hazardous occupation” within the contemplation of the act. Subsection 5, ORS 656.084, provides that “the construction, repair, alteration, painting, moving or demolition of buildings, bridges or other structures” is a hazardous occupation.
The sole question for our determination is, when a home owner causes repairs to be made upon his own residence is he then engaged in a hazardous occupation?
The plaintiff argues that whether or not the employer is engaged in a hazardous occupation is not determined by an employer’s general line of business, but is determined by the type of work carried on for the employer by the employee at the time of the injury, citing Raney v. State Industrial Acc. Comm., 85 Or 199 , 166 P 523 ; Peterson v. State Ind. Acc. Comm., 140 Or 326 , 12 P2d 564 (which case was tacitly overruled by this court in State Ind. Acc. Com. v. Eggiman, 172 Or 19 , 139 P2d 565 ); Hardenbrook v. State Ind. Acc. Comm., 148 Or 661 , 38 P2d 696 ; Brown v. Underwood Lumber Co., 172 Or 261 , 141 P2d 527 ; McLean v. State Ind. Acc. Comm., 189 Or 405 , 221 P2d 566 .
The gist of the above cited cases is to the effect that the employer may have a regular or usual occupation which is nonhazardous, and also be engaged in a hazardous occupation, and the employees working in the hazardous occupation come within the protection and terms of the Act. It must be noted, however, that in each of the above cited cases the hazardous work of the employee alone will not bring the workman under the Act, unless the work is in conjunction with a hazardous occupation then being engaged in by the employer.
The preamble to the Workmen’s Compensation Law, ORS 656.004, defines in general terms the purpose of the Act, which is the protection of workmen in the “various industrial enterprises” carried on within the *284 state. As to employers, the Act, OES 656.022, provides, “all persons engaged as employers in any of the hazardous occupations”, and thereafter proceeds to set forth those occupations deemed hazardous. The various hazardous occupations therein referred to are, therefore, industrial enterprises.
No cases are cited by the plaintiff, and we have found none, which hold that the repair of one’s own dwelling is an industrial occupation. See Eichholz v. Shaft, 166 Minn 339, 208 NW 18 ; Craine v. Department of Labor and Industries, 19 Wash2d 75, 141 P2d 129 .
3. In our opinion, the repair of a private residence for one’s personal use is for the convenience and enjoyment of its owner and resident, and cannot by even the most liberal construction be considered as an industrial occupation within the terms of the Act. State v. Cooper, 205 Minn 333, 285 NW 903 , 122 ALR 727 .
It is perhaps unfortunate that the employment alone of the workman, when hazardous, does not bring him within the spirit of the Act, for when he is injured, his injuries are not less serious, and the economic burden upon himself and upon the people of the state is as great as though his injury came within the confines of the Act. However, who shall and who shall not be brought within its terms is a matter for legislative determination, not the courts.
The judgment of the trial court is affirmed.