compensation, under a statute making no exception in favor of infants or other persons under disability.27 99 [37] B. Who Are Employers. The acts quite generally define the meaning of the word "employer as employed in their text,28 but apart from such definitions the question of whether a particular person stands in the relation of employer to one claiming as employee obviously depends, so far as the contract of hire is involved, on the principles governing the status of master and servant generally.29 The terms "employer and 66 ployee" are manifestly complementary.30 Where an employer seeks to be relieved from liability on and note (so holding, especially in view of the fact that an amendment excluding trainmen, section men, and linemen from the provisions of the act was defeated by the legislature). 27. Re Smith, (Alta.) 17 WestLR 550. 28. See statutory provisions; and Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491; Rongo v. Waddington, 87 N. J. L. 395, 94 A 408; Powley v. Vivian, 169 App. Div. 170, 154 NYS 426. the [a] Voluntary association of employers. Where a night watchman was employed by six different firms, each acting independently of others in making its agreement with the watchman, they did not compose a voluntary association employing him within the workmen's compensation act § 13. Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491. [b] Joint and several liability.Where a workman while engaged in the employment of a glass merchant in repairing the roof of a factory occupied by a firm of wool manufacturers fell from the scaffold on the roof and was killed, and his dependents claimed compensation from the glass merchant and the firm of wool manufacturers jointly and severally, or severally, or in such proportions as to the court should seem just, it was held that as the act imposed no joint liability the application as directed against the two defenders jointly and severally was incompetent and should be dismissed. Herd v. Summers, 7 F. (Ct. Sess.) 870. [c] In case of industrial diseases. -Under the English act of 1906 § 8, in case of certain scheduled industrial diseases due to the nature of any employment in which the workman was employed at any time during the twelve months previous to the date of disablement, compensation is recoverable from the employer who last employed the workman in the employment to the nature of which the disease was due. Such employer may, however, be relieved and shift the burden to some other employer by showing that the disease was in fact contracted while in the employment of such other employer; and further, where the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twelve months employed the workman in the ployment to the nature of which the disease is due are liable to contribute to the employer from whom compensation is recoverable. Barron Seaton Burn Coal Co., [1915] 1 K. B. 756, 8 BWCC 218; Dean v. Rubian Art Pottery, [1914] 2 K. B. 213, 7 BWCC 209; Mallinder v. Moores, [1912] 2 K. B. 124, 5 BWCC 362; Russell v. Keary, 8 BWCC 410; Glancy v. Watson, 8 BWCC 391; McTaggart v. Barr, 8 BWCC 376; Merry v. McGowan, 8 BWCC 344; Timpson v. Mowlem, 8 BWCC 178; Burnham v. Taylor, 3 BWCC 569: Lees v. Waring, 2 BWCC 474; Greenhill v. Glasgow Daily Record, 2 BWCC 244; Curtis v. Black, 2 BWCC 239. em V. [d] Under the English act of 1897, the employer must also be an "undertaker" as defined by the act. Merrill em the ground that the services of the employee have been transferred to another, he must show that the servant has in fact consented to the transfer of his services to the new master, has entered on his service, and has submitted himself to his direction and control.31 Where, under the statute, the employer must employ workmen in hazardous employments which in turn must be carried on for pecuniary gain, the state, although included within the meaning of the word "employer," must, in order to be within the provisions of the compensation act, be employing workmen in hazardous occupations for pecuniary gain, in like manner as other employers.3 32 v. Wilson, [1901] 1 Q. B. 35. 3 WCC 155; Percival v. Garner, [1900] 2 Q. B. 406, 2 WCC 99; Cass v. Butler, [1900] 1 Q. B. 777, 2 WCC 87; Mason v. Dean, [1900] 1 Q. B. 770, 2 WCC 91; Stead v. Moore, 2 WCC 96; Herron v. Charnley-The Rhea Fibre Co., 2 WCC 24. 29. Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491 (holding that under the workmen's compensation act of 1913, § 13 of which defines an "employer" as every person, firm, voluntary association, and private corporation who has any person in service under any appointment or contract of hire, and § 14 of which defines "employe" as every person in the service of an employer under any appointment or contract of hire, even if the relation is the same as that of master and servant under Civ. Code § 2009, defining a "servant" as one who is employed to render personal service to his employer otherwise than in the pursuing of an independent calling and who in such service remains entirely under the control and direction of the latter, a night watchman who was employed by six different firms, each acting independently of the other, is an employee of the one on whose premises he was killed while in the discharge of his duties). But see Rongo v. Waddington, 87 N. J. L. 395, 397, 94 A 408 (where the court said: "We are concerned with the meaning of the statute which undertakes by the implied assent of the parties to create a contract on the part of the employer to compensate his employe in a specific way and to a specified amount for injury or death arising out of or in the course of the employment. We must, therefore, look to the statute to ascertain who is intended by the word 'employer,' and who by the word 'employe" "). [a] Hiring by mandatary. The hiring and employment of a workman by a mandatary, in his own name and without disclosing his principal, establishes between them the relation of employer and employee and entitles the representatives of the workman, in case of his death by accident in the course of his work, to the com-. pensation provided in Quebec Rev. St. (1909) § 7322. Demers v. McCrae, 40 Que. Super. 123. [b] Applications of rule have been made to: (1) Engineer on chartered steam tug. Mackinnon v. Miller, 2 BWCC 64. (2) Employee of relief committee. Porton v. Central (Unemployed) Body for London, [1909] 1 K. B. 173, 2 BWCC 296; Gilroy v. Mackie, 2 BWCC 269. (3) Threshing machine hand. Reed V. Smith, 3 BWCC 223. (4) Employee of stevedore. Pollard v. Goole, etc., Co., 3 BWCC 360. (5) Taxicab driver working on percentage. Smith V. General Motor Cab Co., [1911] A. C. 188, 4 BWCC 249; Doggett v. Waterloo Taxi-Cab Co., [1910] 2 K. B. 336, 3 BWCC 371; Bates-Smith v. General Motor Cab Co., 3 BWCC 500. (6) Mate of vessel engaged by captain. Ship Victoria v. Barlow, 5 BWCC 570; Standing v. Eastwood, 5 BWCC 268. (7) Member of squad of skilled workmen. McCready v. Dunlop, 37 Sc. L. Rep. 779. (8) Coal trimmer selected by harbor commissioners and paid and superintended by shipping agents. Gorman v. Gibson, [1910] S. C. 317. Relationship generally see Master and Servant [26 Cyc 966]. 30. Rongo v. Waddington, 87 N. J. L. 395, 94 A 408. Necessity and sufficiency of relation of master and servant see infra $ 38. 31. Jackson v. Erie R. Co., 86 N. J. L. 550, 91 A 1035. [a] Transfer of control.-"In determining whether, in a particular act, he is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result." Pigeon's Case, 216 Mass. 51, 53, 102 NE 932, AnnCas1915A 737 [quot Knowlton, C. J., in Shepard v. Jacobs, 204 Mass. 110, 112, 90 NE 392, 134_ AmSR 648, 26 LRANS 442]. [b] Person hiring team and driver.-(1) Where the owner of a team hired it to another at a fixed price per day, which included wagon, horses, and driver, the driver was the employee of the owner. Rongo v. Waddington, 87 N. J. L. 395, 94 A 408. (2) "It commonly has been held in cases where a horse and driver have been let by a general employer into the service of another that the driver is subject to the control and therefore is the agent of his general employer as to the care and management of the horse and vehicle." Pigeon's Case, 216 Mass. 51, 53, 102 NE 932, AnnCas 1915A 737. (3) That claimant's employer was requested by contractors to send a teamster to carry and to load some concrete sills, and. that claimant was sent and, while assisted by the son of one of the contractors in carrying to his team some sills selected by the contractors, was injured, does not show claimant to be a "servant" of the contractors, or engaged in the "usual course of business" of the contractors, within the workmen's compensation act (St. [1911] c 751). In re Comerford, (Mass.) 113 NE 460. (4) Where an employer hired the services of his team and an employee to another to haul sand, he was the employer liable for compensation to the employee for an injury sustained while loading sand in a pit for the purpose of hauling it. Dale v. Saunders, 218 N. Y. 59, 112 NE 571 [aff 171 App. Div. 528, 157 NYS 1062]. [c] Doctrine of respondeat superior is inapplicable. Dale v. Saunders, 218 N. Y. 59, 112 NE 571 [aff 171 App. Div. 528, 157 NYS 1062]. 32. Allen v. State, 160 NYS 85. [a] Application of rule.-An employee of the highway department of the state of New York, engaged as a foreman of a concrete gang doing maintenance and repair work on a state road on which the state was VIII. EMPLOYEES WITHIN INTENT OF ACTS [38] A. Who Are Employees in General. The provisions of a compensation act as to the employees included are to be construed broadly.33 A doing its own repair work by its own equipment and force, is not entitled to compensation. Allen V. State, 160 NYS 85. 33. In re Donovan, 217 Mass. 76, 104 NE 431, AnnCas1915C 778; Kiernan V. Friestedt Underpinning Co., 171 App. Div. 539, 157 NYS 900; Lysons v. Knowles, [1901] A. C. 79, 3 WCC 1. "The act [Stat. 1911 c 751] makes no distinction between wise or foolish, skilled or inexperienced, healthy or diseased employees. All who rightly are describable as employees come within the act." Madden's Case, 222 Mass. 487, 494, 111 NE 379, LRA1916D 1000. [a] Under the New York Act "the word 'employee' means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises, or at the plant, or in the course of his employment away from the plant of his employer." Dale v. Saunders, 218 N. Y. 59, 63, 112 NE 571 [aff 171 App. Div. 528, 157 NYS 1062]. To same effect Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158. contract of employment is essential, however, in order that a person may be an employee, although K. B. 510, 6 WCC 107. (3) A member of the orchestra on a vessel is not a workman, nor is he a member of the crew. Brailey V. Black, [1912] 134 L. T. J. 138. [f] Persons held artisans or laborers under federal act.-(1) An employee designated a messenger but engaged in work of the laboring class. In re Mullins, Op. Sol. Dept. Labor 58. (2) A sailor working on a dredge and assisting in dredge work. In re Zacias, Op. Sol. Dept. Labor 62. (3) An employee appointed as a special laborer-messenger engaged on laborer or messenger work, except when detailed to clerical work. In re Adler, Op. Sol. Dept. Labor 63. (4) A policeman or watchman. In re Golden, Op. Sol. Dept. Labor 68. (5) A packer in a navy yard storeroom employed to handle, arrange, and list stock. In re Crandall, Op. Sol. Dept. Labor 77. (6) A sanitary inspector, Canal Zone. In re Pickett, Op. Sol. Dept. Labor 80. (7) A storeroom clerk, Canal Zone. In re Inniss, Op. Sol. Dept. Labor 81. (8) A rodman with a surveying party, also acting as chainman and axman. In re Wil[b] Persons held employees.-(1)liams, Op. Sol. Dept. Labor 87. (9) An employee of a contractor, who A survey man. In re Hott, Op. Sol. had been in his employ for about Dept. Labor 89. (10) A time ineight months at a daily wage pay- spector. In re Van Sittert, Op. Sol. able weekly, and who on appearing Dept. Labor 90. (11) An acting infor work one morning a little late spector, normally a working foreman was told by the superintendent that of laborers. In re Keating, Op. Sol. he need not work because he thought Dept. Labor 91. (12) A working that he had been drinking and was foreman of laborers. In re Kline, not in a fit condition to go to work, Op. Sol. Dept. Labor 92. (13) An and who while leaving the premises employee designated an inspector tripped and fell and was injured, and without any duty of supervision was a regular "employee" there in or superintendence. In re Baker, the performance of his duties as Op. Sol. Dept. Labor 100. (14) A such. Kiernan v. Friestedt Under-rigger and diver. In re Lagerholm, pinning Co., 171 App. Div. 539, 157 NYS 900. (2) A shareholder and vice president of a corporation is an "employee" thereof, within the workmen's compensation act, where he worked with regular workmen, although he was general foreman. Beckman v. Oelerich, 160 NYS 791. (3) A working foreman. Foucher v. Morache, 46 Que. Super. 498. (4) A blind man in the industrial department of an institute for the blind receiving for his services, board, lodging, clothing, and five shillings per month in money. gillivray v. Northern Counties Inst. for Blind, 48 Sc. L. Rep. 811, 4 BWCC 429. (5) A professional football player may be a "workman." Walker v. Crystal Palace Football Club, [1910] 1 K. B. 87, 3 BWCC 53, AnnCas1913C 25 and note. (6) A law writer or scrivener. McKrill v. Howard, 2 BWCC 460. Mac [c] Persons held not employees. (1) A lecturer explaining airship at exhibition. Waites V. FrancoBritish Exhibition, 2 BWCC 199. (2) An expert chemist is not a "workman." Bagnall V. Levinstein, [1907] 1 K. B. 531, 9 WCC 100. (3) A manager of a colliery is not a "workman." Simpson v. Ebbw Vale Steel, etc., Co., [1905] 1 K. B. 453, 7 WCC 101. (4) A rate collector. Lennon v. Wexford County Council, [1913] 48 I. L. T. 40. [d] Members of the employer's family dwelling in his house are excluded by the English act. Marks v. Carne, [1909] 2 K. B. 516, 2 BWCC 186; McDougall V. McDougall, BWCC 373. 4 Op. Sol. Dept. Labor 104. (15) A pilot or master of a vessel who performs labor of a physical or manual nature similarly to other members of the crew. In re Sturdevant, Op. Sol. Dept. Labor 106. (16) A master of a dredge performing work in the nature of a "handy man." In re Waters, Op. Sol. Dept. Labor 110. (17) A messenger in the government printing office, carried on the clerical roll. In re Ellett, Op. Sol. Dept. Labor 112. (18) An instrument man in a surveying party, character of work determines status. In re Sanders, Op. Sol. Dept. Labor 114. [g] Persons held not artisans or laborers under federal act.-(1) A clerk engaged in office work. In re Alcee, Op. Sol. Dept. Labor 61. (2) A draftsman whose duties resemble those of a clerk or artist. In re Reeves, Op. Sol. Dept. Labor 73. (3) A foreman or superintendent who directs the work of others and whose work is mental and administrative or executive. In re Little, Op. Sol. Dept. Labor 78. (4) A concrete inspector engaged in inspecting and directing the work of others. In re Cunningham, Op. Sol. Dept. Labor 81. (5) A telegrapher and shipping clerk engaged in work of a clerical nature. In re Whiteman, Op. Sol. Dept. Labor 84. (6) A master or pilot of a steamer used in river and harbor work. In re Jones, Op. Sol. Dept. Labor 86. (7) A transit man. In re Grant, Op. Sol. Dept. Labor 94. (8) A surveyor. In re Sheppard, Op. Sol. Dept. Labor 98. (9) An assistant veterinarian. In re Brown, Op. Sol. Dept. Labor 102. (10) A laboratory assistant. In re Ransom, Op. Sol. Dept. Labor 103. (11) A dock master. In re Trahey, Op. Sol. Dept. Labor 105. (12) An inspector whose duties involve no manual labor. re Shetler, Op. Sol. Dept. Labor 108. (13) A ship's draftsman. In re Ripley, Op. Sol. Dept. Labor 110. (14) In [e] A seaman (1) to be within the English act of 1906 must be employed on a registered British vessel. Mortimer v. Wisker, [1914] 3 K. B. 699, 7 BWCC 494; Panagotis v. Steamship Pontiac, [1912] 1 K. B. 74, 5 BWCC 147. (2) Seamen were not included in the English act of 1897. Mack v. Williams, 7 WCC 96; A matron of an Indian school. In Williams v. Mack, 6 WCC 113. Contra Griffin v. Houlder Line, [1904] 1 re Humphreys, Op. Sol. Dept. Labor 111. (15) A cement tester and chem 34 ist. In re Fenz, Op. Sol. Dept. Labor 116. 34. Conn. Sibley V. State, 89 Conn. 682, 93 A 161, LRA1916C 1087. N. J.-Rongo v. Waddington, 87 N. J. L. 395, 94 A 408. Wash.-Hillestad v. State Industrial Ins. Commn., 80 Wash. 426, 141 913, AnnCas1916B 789. Eng. Kemp v. Lewis, [1914] 3 K. B. 543, 7 BWCC 422; Richards v. Wrexham, etc., Collieries, [1914] 2 K. B. 497; Wray v. Taylor, 109 L. T. Rep. N. S. 120; Richards v. Pitt, 8 BWCC 525; Bobbey v. Crosbie, 8 BWCC 236; Pears V. Gibbons, 6 BWCC 722; Lewis v. Stanbridge, 6 BWCC 568 (holding contract established); Boon v. Quance, 3 BWCC 106; McClelland v. Todd, 2 BWCC 472; Murphy v. Enniscorthy Bd. of Guardians, 2 BWCC 291; Boswell V. Gilbert, 2 BWCC 251; Spiers v. Elderslie SS. Co., 2 BWCC 205; Burns v. Manchester, etc., Mission, 1 BWCC 305. See also Williams v. South Wales, etc., Football Assoc., [1913] 57 Sol. J. 228 (compensation refused to football referee). Que.-Wilston v. Grand Trunk R. Co., 47 Que. Super. 67. "The law in its tenor and terms contemplates that the relation between employer and employee shall possess some element of certainty. It implies, if indeed it does not literally provide, that there shall be an actual contractual relation between the parties-that is, an agreement to labor for an agreed wage or compensation." Hillestad v. State Industrial Ins. Commn., 80 Wash. 426, 429, 141 P 913, AnnCas1916B 789. [a] Employee of several employers. The fact that a person is working at the same time for different employers is not necessarily inconsistent with the relation of master and servant between any one of such employers and himself. Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491. [b] Legality of contract.-A contract of employment to learn to operate an electric passenger elevator is not illegal for the reason that the employee has not yet qualified by securing a proper license as an elevator operator. Pettee v. Noyes, (Minn.) 157 NW 995. [c] Partner.-A partner working in a mine at manual labor and receiving compensation therefor independent of his share as a partner is not entitled to compensation. Ellis v. Ellis, [1905] 1 K. B. 324. [d] Under the British National Insurance Act of 1911-(1) Pupil teachers and monitors in national schools in Ireland are held employees. Re Employment of Monitors, etc., 6 BWCC N136. (2) Curates or assistant curates in the church of England are not persons employed under a contract of service. In re Employment of Church of England Curates, [1912] 2 Ch. 563, 6 BWCC N3. (3) There is no contract of service between poor law guardians and their officers under the Irish Poor Relief Act. Re Employment of Poor Law Officers, 6 BWCC N128. (4) There is no contract of service in the case of resident physicians and resident surgeons, nonresident physicians, nonresident house surgeons and clinical assistants, and the supervisors of the administration of anesthetics in the Royal Infirmary of Edinburgh. Scottish Ins. Comrs.. v. Royal Infirmary, 6 BWCC N120. (5) Lithographic artists and engravers engaged in the correction or the improvement of half-tone engraved plates are not engaged in manual labor. Re Lithographic Artists, 6 BWCC N44. (6) A dairyman's foreman and a tailor's cutter are not employed in manual labor. Re Dairy it may be either express or implied,35 or even voidable,36 and the employee must have begun on such employment.37 A contract which is illegal as in violation of statute will not suffice.38 The relation originally established presumptively continues for a reasonable time or until changed by express or implied agreement of the parties.39 Where the facts are conceded, the question of the existence of the relationship of employer and employee is one of law;40 otherwise it is a question of fact, or of mixed law and fact."1 41 Earnings. By some of the acts, employees earning in excess of a fixed amount are excluded.42 In determining the amount of the employee's earnings, deductions to which he may be subject must man's Foreman, 6 BWCC N7. (7) Ministers of the united methodist church and ministers, under probation, of the Wesleyan methodist church are not employed under a contract of service. Re Employment of Ministers of United Methodist Church, 6 BWCC N1. [e] Manitoba.-Under the act of 1902, workman must be engaged in manual labor. Hewitt v. Hudson's Bay Co., 20 Man. 126, 15 West LR 372 (holding sales clerk not a workman). 35. Sibley v. State, 89 Conn. 682, 93 A 161, LRA1916C 1087. [a] Evidence held to show contract.-Gove's Case, 223 Mass. 187, 111 NE 702 (contract by a father for the employment of himself and his son); Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 NW 657, LRA1916A 17. [b] Evidence held not to show contract.-Hillestad v. State Industrial Ins. Commn., 80 Wash. 426, 141 P 913, AnnCas1916B 789 (employment of son by father). 36. Kenny v. Union R. Co., 166 App. Div. 497, 500, 152 NYS 117. "While the relation of employer and employee as defined by the statute must have existed at the time deceased sustained the injury, it matters not whether the employment was under a contract concededly valid as to both parties, or under a contract voidable at the election of the employer, or whether the liability of the employer for wages was fixed, or determinable under quantum meruit." Kenny v. Union R. Co., supra. 37. Susznik v. Alger Logging Co., 76 Or. 189, 147 P 922; Hillestad v. State Industrial Ins. Commn., 80 Wash. 426, 141 P 913, AnnCas1916 B 789; Perry v. Anglo-American Decorating Co., 3 BWCC 310. 50 Employment secured by false representations.48 Although the employee secured his employment through false representations in writing amounting to a misdemeanor, he is entitled to compensation.49 [39] B. State or Municipal Employees. Where the city or the state is the employer, the relation Such is not the law. | Colquhoun v. Woolfe, [1912] S. C. Boody v. K. & C. Mfg. Co., 77 N. H. 1190, 49 Sc. L. Rep. 911; Newstead 208, 90 A 859, LRA1916A 10, AnnCas v. Labrador, [1915] W. N. 360; Cos1914D 1280.' Wheeler v. Contoo- tello v. Kelsall, 6 BWCC 480 [app cook Mills Corp., 77 N. H. 551, 552, dism 5 BWCC 667]; Whelan v. Great 553, 94 A 265. Northern Steam Fishing Co., 2 BWCC 235; Jamieson v. Clark, 2 BWCC 228; Aberdeen Steam Trawling, etc., Co. v. Gill, 1 BWCC 274. of employees. Employee on way to and from work see infra § 75. 38. Kemp v. Lewis, [1914] 3 K. B. 543, 7 BWCC 422. 39. Pettee v. Noyes, (Minn.) 157 NW 995 (holding the employment of a minor as a student elevator operator, to work under the direction of a regular operator, not terminated by the fact that he operated the elevator in the absence of his instructor). 40. Kenny v. Union R. Co., 166 App. Div. 497, 152 NYS 117. 41. Tuttle v. Embury-Martin Lumber Co., (Mich.) 158 NW 875; Simmons v. Heath Laundry Co., [1910] 1 K. B. 543, 3 BWCC 200; Wilmerson v. Lynn, etc., SS. Co., 6 BWCC 542. 42. See statutory provisions; and Reynolds v. Canadian Light, etc., Co., 48 Que. Super. 500, 25 DomLR 237; Foucher v. Morache, 46 Que. Super. 498; Couture v. Grand Trunk R. Co., 16 Que. Pr. 221. 43. Williams v. Steamship Maritime, [1915] 2 K. B. 137, 8 BWCC 267. [a] Suspension from work.-A workman who is paid by the hour for his work, but who is laid off temporarily through no fault of his, and who is afterward recalled and resumes his work, is entitled to estimate the amount he would have earned had he not been laid off and to add it to the amount actually received in order to show that the workmen's compensation act does not apply and that he is entitled to bring his action under the common law. Reynolds v. Canadian Light, etc.. Co., 48 Que. Super. 500, 25 DomLR 237. 44. Skailes v. Blue Anchor Line, [1911] 1 K. B. 360, 4 BWCC 16. 45. Dothie v. Macandrew, [1908] 1 K. B. 803, 1 BWCC 308. Smith un [a] Changing work.-"The plaintiff was at work by the day in an upstairs room of the defendant's stocking mill. The work ran short. and the overseer told her that if she wanted to finish out the day she could take her chair and go downstairs, where there was piece-work to be done. The stairs were railed on one side for several steps from the bottom, the treads were badly worn, and the stairs were incumbered by large bundles of stockings which had been thrown down from the upper floor. The plaintiff attempted to pick her way down the stairs while carrying her chair, and while so doing slipped and fell from the worn and unrailed treads, receiving the injuries complained of. 638 was 46. Ellis v. Ellis, [1905] 1 K. B. 324, 7 WCC 97; Beck v. Hill, 8 BWCC 592; Bobbey v. Crosbie, 8 BWCC 236; Kelly v. Miss Evans, 6 BWCC 916; V. Horlock, 6 BWCC (where a contract of service shown); Cole v. Shrubsall, 5 BWCC 337; Hoare v. Barge Cecil Rhodes, 5 BWCC 49; Hughes v. Postlethwaite, 4 BWCC 105; Carswell v. Sharpe, 3 BWCC 552. [a] A part owner of a vessel may be employed as master and may be regarded as a workman. Carswell v. Sharpe, 3 BWCC 552. [b] Evidence held not to show joint adventure. Jones v. The Alice and Eliza, 3 BWCC 495. The claim that because she had completed one kind of work upstairs and was going downstairs to begin work for which she was paid in a different way, therefore she was not, while in transit, the defendant's servant, does not demand extended consideration. If the claim were well founded, employers would be released from all liability under the act for the condition of the ways provided for the ingress and egress L. T. Rep. N. S. 891, 8 BWCC 209; 47. Workmen's Compensation Act (1906) § 7 (2). See for construction of this section Costello v. Ship Pigeon, [1913] A. C. 407; Burman v. Zodiac Steam Fishing Co., [1914] 3 K. B. 1039, 7 BWCC 767; Admiral Fishing Co. v. Robinson, [1910] 1 K. B. 540, 3 BWCC 247; Stephenson V. Rossall Steam Fishing Co., 112 48. Misrepresentations of age see infra § 40. 49. Kenny v. Union R. Co., 166 App. Div. 497, 501, 152 NYS 117 (where the court said: "The false representations in no way related or contributed to the cause of death. The plain purpose of the statute was to provide compensation to an employee for an accidental personal in jury and to the family of an employee who has suffered death as the result of such injury sustained by the employee arising out of and in the course of such employment 'without regard to fault as a cause of such injury,' with the two specified exceptions of where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or another, or where the injury results solely from the intoxication of the injured employee while on duty.' (See § 10.) Concededly the injury was wholly accidental and neither exception applies"). "The Workmen's Compensation Law is not to be read into the contract of employment as forming a part of it and as dependent for its enforcement upon the validity of the contract of employment. Although making the false statements constituted a misdemeanor, they did not render the contract of employment void, but at most voidable at the election of the employer, which it at no time saw fit to exercise." Kenny v. Union R. Co., supra. 50. Blynn v. Pontiac, 185 Mich. 35, 151 NW 681; Hornburg v. Morris, 163 Wis. 31, 157 NW 556. See Finlay v. Tullamore Union, 7 BWCC 973 (where the workman held an employee of the municipal guardians of the poor). was [a] For example, particular statutes have been held not to apply to: (1) Firemen regarded as public officers. Devney's Case, 223 Mass. 270, 111 NE 788. (2) Policemen who are Blynn v. Pontiac, appointive officers. 185 Mich. 35, 151 NW 681. 51. Sibley v. State, 89 Conn. 682, 93 A 161, LRA1916C 1087; Agler v. 181 Michigan Agricultural College, Mich. 559, 148 NW 341 (holding that the state board of agriculture or the not regents of the university are within the workmen's compensation act [Pub. Acts (Ex. Sess. 1912) No. 10] by virtue of pt 1 § 5 thereof. declaring that the state shall be subject to the provisions of the act. and that an employee of the Michigan agricultural college under the control of the state board of agriculture is not an employee of the state, and cannot recover compensation under the act, where the col of master and servant must exist. As to whether particular employees are included depends peculiarly on the wording of the act under which compensation is sought.52 the illegality of the employment and the injury;55 but it does not apply to a minor who is at the time of entering the employer's service legally authorized to engage in the occupation for which he contracted to work, but is not permitted by law to do the particular work in which he is injured.56 In any event, to permit a minor employee to be regarded as within the meaning of a compensation act, there must be proof of a contractual relation;57 but it has been held immaterial that the employee misrepresented his age, or that the contract is voidable by the minor.59 [40] C. Children or Minors. Where a child has not attained the age at which he may lawfully be employed in the occupation in which he is injured, he cannot be regarded as an employee within the provisions of a compensation act.53 The same rule applies where the minor is working without having obtained a permit which, if obtained, would have rendered his employment lawful, and although there is no causative connection between lege has not voluntarily come under v. St. Louis County Dist. Ct., (Minn.) the law). 158 NW 791. [a] A sheriff is not an "employee" of the state, within the workmen's compensation act (Pub. Acts [1913] c 138) pt B § 43, defining "employer" and "employee" as follows: "Employee" shall mean any person who has entered into or works under any contract of service or apprenticeship with an employer. "Employer" shall mean any natural person, corporation, firm, partnership, or joint stock association, the state, and any public corporation within the state using the services of another for pay; it includes also the legal representative of any such employer. Sibley V. State, 89 Conn. 682, 93 A 161, LRA1916C 1087. 52. See Udey v. Winfield, (Kan.) 155 P 43 (holding that clerical employees in the office of the city clerk are not employees of the city in conducting a light and water plant, as contemplated by § 6 of the workmen's compensation act [L. (1911) c 218]); State v. St. Louis County Dist. Ct., (Minn.) 158 NW 790; Superior v. Industrial Commn., 160 Wis. 541, 152 NW 151 (holding that St. [1913] 925-171a, which was first enacted by L. [1907] c 493, and which provides that the park commissioners of all cities shall have jurisdiction and control for park purposes over the part of the public streets lying between the curb and the sidewalk, applies to a city which has not adopted the general city charter law, notwithstanding the incorporation of the statute into that chapter of the statutes, and the provision of St. [1913] 925-2, that no city already incorporated shall be affected by the provisions of that chapter unless it has adopted or shall adopt it, and such city is therefore liable under the workmen's compensation law for the death of a park caretaker, resulting from injuries received while he was mowing the grass on the space between the curb and the sidewalk). [a] Policemen,-(1) A village marshal in doing police duty is in respect thereto a policeman within the meaning of an act providing that policemen shall be deemed employees. Kiel v. State Industrial Commn., 163 Wis. 441, 158 NW 68; West Salem v. State Industrial Commn., 162 Wis. 57, 155 NW 929. (2) This is true, although he was enforcing a state law when injured. Kiel v. State Industrial Commn., supra; West Salem v. State Industrial Commn., supra. (3) When the statute includes "every person in the service of a city under any appointment or contract for hire, express or implied, oral or written; but shall not include any official of any city who shall have been elected or appointed for a regular term of office," a policeman holding office during good behavior killed in the discharge of his duty is included. State v. St. Louis County Dist. Ct., (Minn.) 158 NW 790, 791. (4) A policeman is not within the English act of 1906. Sudell V. Blackburn Corp., 3 BWCC 227. 54 [c] Laborers, workmen, and mechanics.-"By St. 1913, c. 807, cities and towns upon acceptance of the act may pay compensation 'to such laborers, workmen and mechanics' employed by them as receive injuries arising out of and in the course of their employment; or, in case of death resulting from such injury may pay compensation to the persons entitled thereto' as provided in St. 1911, c. 751, and acts in amendment thereof. It appears from the record that the city accepted the statute, and the question is whether the deceased employeé upon whom the complainant, his mother, was partially dependent, was a laborer, workman or mechanic within the meaning of the statute. At the time of his injury and death he was a hoseman and a member of a fire company stationed at one of the engine houses of the city where he was housed when on duty, performing the services required by his position. The framers of the statute undoubtedly intended that the words 'laborers, workmen and mechanics' should be taken in their ordinary lexical sense which excludes the trained and disciplined force comprising the defendant's fire department. The provisions of section 5 of the statute that 'any person entitled to receive from the Commonwealth or from a county, city, town or district the compensation provided. who is also en | 58 bring the child within the operation of the act when his age is such that he cannot be allowed or permitted to work in the employment. Hetzel v. Wasson Piston Ring Co., (N. J.) 98 A 306. 54. Stetz v. Mayer Boot, etc., Co., 163 Wis. 151, 156 NW 971. See Hillestad v. Industrial Ins. Commn., 80 Wash. 426, 142 P 913, AnnCas1916B 789 (holding that, under Remington & B. Code § 6570, providing that no child under fourteen years shall be hired out to labor in any factory, mill, etc., one who employs a child under that age must be prepared in all cases to show that he is employed lawfully, and in the absence of such showing, as that the superior judge had given the child permission to work, the law will presume that the employment violated the provision). 55. Hillestad V. Industrial Ins. Commn., 80 Wash. 426, 142 P ·913, AnnCasi916B 789. 56. Foth v. Macomber, etc., Rope Co., 161 Wis. 549, 154 NW 369. 57. Hillestad V. Industrial Ins. Commn., 80 Wash. 426, 141 P 913, AnnCas1916B 789. [a] Employment by parent.-"If a father is going to insist that the child is a workman, he should be bound by the same rule that the law puts upon one who is of full age, and in the absence of clear proof of a contractual relation, we are disposed to hold that a father who puts his child to work at a hazardous employment assumes the risk attending such employment." Hillestad v. Industrial Ins. Commn., 80 Wash. 426, 430, 141 P 913, AnnCas1916B 789. [b] Apprenticeship. The relation of master and servant has been held to exist when a minor was injured while serving an apprenticeship in learning to operate an electric passenger elevator. Pettee v. Noyes, (Minn.) 157 NW 995. titled to a pension by reason of the same injury shall elect whether he will receive such compensation or such pension and shall not receive both' has [have] not been forgotten. But this section is to be read with section 7, which expressly says that the provisions of St. 1911, c. 751, and acts in amendment thereof 'shall not apply to any person other than laborers, workmen and mechanics employed by counties, cities, towns or districts having the power of taxation.' We are accordingly of opinion that the ruling asked for by the city, that the decedent was not a work-ployment entered into between the man, laborer or mechanic at the time of his injury and death should have been given.' Devney's Case, 223 Mass. 270, 111 NE 788, 789. 53. Hetzel v. Wasson Piston Ring Co., (N. J.) 98 A 306; Hillestad v. Industrial Ins. Commn., 80 Wash. 426, 142 P 913, AnnCas1916B 789; Stetz v. Mayer Boot, etc., Co., 163 Wis. 151, 153, 156 NW 971 (construing the provision of the Wisconsin act including in the definition of employees "minors who are legally permitted to work under the laws of the state"). [a] Where employer is parent. "The burden of meeting the consequences of the injury to workmen is put upon the industry, but the state has not assumed a statutory duty to reimburse the father for the loss of the services of the son who has been employed by him in violation of a positive and equally meritorious statute." Hillestad v. Industrial Ins. Commn., 80 Wash. 426, 434, 141 P 913, AnnCas1916B 789. [b] Firemen,- An assistant chief of a city fire department has been [b] A contract by the parent on held within the Minnesota act. State behalf of the child is unavailing to 58. Havey v. Erie R. Co., 87 N. J. L. 444, 445, 95 A 124 [rev on other grounds 88 N. J. L. 684, 96 A 995] (where the court said: "One of the reasons assigned for reversal is that the contract of em prosecutor and the plaintiff's intestate was made by misrepresentation and fraud, in that the plaintiff's decedent misrepresented his name and age to the prosecutor at the time he applied for employment and obtained it. We think that the misrepresentation as to name and age, in the absence of any proof, that the prosecutor was induced to enter into the contract upon such misrepresentation, did not constitute such a fraud that it will operate to relieve the prosecutor from the statutory obligation to make compensation in a case arising under the statute. Moreover, it does not appear that there was any causal connection between the misrepresentation and the contract"). Misrepresentation of age as misconduct see infra § 78. 59. Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 A 823 (holding that, in an action by an employee to recover compensation for injuries received while in the course of employment, defendant cannot set up the infancy of plaintiff as a bar to 60. See statutory provisions; and In re Comerford, (Mass.) 113 NE 460; King's case, 220 Mass. 290, 107 NE 959; Sundine's Case, 218 Mass. 1, 105 NE 433, LRA1916A 318; Ringwood v. Kerr, 7 BWCC 1056; Ringwood v. Grand Trunk Pac. R. Co., 7 Alta. 226, 17 Dom LR 202 [allowing app 28 WestLR 263, 6 West Wkly 942]; Hallett v. Abraham, 17 DomLR 854, 6 OntWN 355. 60 bility on the part of all employers," and that the courts must be resorted to." 61 [§ 42]. E. Independent Contractors. One who is not an employee, but an independent contractor for the work, is not within the scope of a compensation act.62 Where the right to control the manner of doing work is reserved, the relation ordinarily is held to be that of employer and employee in 130 63 able, under the California Workmen's Compensation Law [St. (1913) p 279]. for indemnity for injuries suffered by an employee of an independent contractor, injured while superintending the installation of apparatus for its assured). 62. Western Indemn. Co. v. Pillsbury, (Cal.) 159 P 721; Perham v. American Roofing Co., (Mich.) 159 NW 140; Vamplew v. Parkgate Iron, etc., Co., [1903] 1 K. B. 851, 5 WCC 114; Barnes v. Evans, 7 BWCC 24; Byrne V. Baltinglass Rural Dist. Council, 5 BWCC 566; Simmons v. Faulds, 3 WCC 169, 17 T. L. R. 352; Hayden v. Dick, 40 Sc. L. Rep. 95. See also cases in following notes. [a] Illustrations.-Under the compensation act (St. [1913] p 284 § 14). providing that the term "employé," as used in §§ 12-35, shall mean every person in the service of an employer, as defined by § 13, under any appointment of contract of hire or apprenticeship, a "contract of hire" means a contract for personal services. Western Indemn. Co. v. Pillsbury, (Cal.) 159 P 721. [41] D. Employees of Contractor or Subcontractor. The liability of the employer or the insurer under the provisions of some of the statutes extends to the employees of a contractor or a subcontractor doing work for the employer. But it has been held that such a provision cannot be enforced by an industrial commission under a constitutional provision giving it power over "a liathe action, infancy being a personal | principal." Marks v. Carne, [1909] | accident insurance company is not liprivilege which none but the infant 2 K. B. 516, 518, 2 BWCC 186. (4) can take advantage of, and a contract It is necessary that the work be unvoidable by an infant binds a per- dertaken for the purpose of the prinson of full age). cipal's trade or business. Dittmar v. Ship V 593, [1909] 1 K. B. 389, 2 BW CC 178 (coal merchants and a lighterman entering into a contract for navigation to a branch house of a lighter they had purchased are within the act); Mulrooney v. Todd, [1909] 1 K. B. 165, 2 BWCC 191 (municipal | corporation contracting for clearing away an old building is within the act); Brine v. May, 6 BWCC 134 (agent contracting to have a house repaired is not within the act); Hayes v. Thompson, 6 BWCC (barge owner contracting for the overhauling and the cleaning of a barge is not within the act); Luckwill v. Auchen Steam Shipping Co., 6 BWCC 51 (shipowner contracting to have a boiler scaled is not within the act); Skates v. Jones, 3 BWCC 460 (skating rink proprietors contracting to have a building removed for their purposes are not within the act); Spiers v. Elderslie SS. Co., 2 BWCC 205 (shipowner contracting for boiler scaling is not within the act); Waites v. Franco-British Exhibition, 2 BWCC 199 (exhibition company letting a side show is not within the act); Zugg v. Cunningham, 1 BWCC 257 (chemical manufacturers employing a rigger to tar structures used in the manufacture of chemicals is not within the act). (5) The accident must also occur on, in, or about, premises on which the principal has undertaken to ecute the work or which are otherwise under his control or management. Andrews V. Andrews, [1908] 2 K. B. 567, 1 BWCC 264. (6) It cannot be said that "everything which is reasonably necessary to be done for the purpose of a trade or business is work undertaker by the principal." Hockley v. West London Timber, etc., Co., supra. (7) It has been held that there must be some [a] For example, (1) under Mass. St. (1911) c 751 pt 3 § 17, providing that, if a subscriber contracts with an independent contractor to do the subscriber's work, and the association, if the work were executed by the employees immediately employed by the subscriber, would be liable for compensation to the employees, it shall pay such employees any compensation which would be payable if the independent contractor were a subscriber, pt 5 § 2, defining "association" as used therein, as meaning the Massachusetts Employees' Insurance Association, and St. (1912) c 571 17, providing that any liability insurance company authorized to do business within the commonwealth shall have the same right as the association to insure the liability to pay the compensation, and that the holder of its policy shall be regarded as a subscriber, and that it shall be subject to the provisions of the act, a company which insured merchant tailors against liability was liable to an employee of an independent contractor making clothing for such merchant tailors in their workroom, although the independent contractor carried no insurance. Sundine's Case, 218 Mass. 1, 105 NE 433, LRA 1916A 318. (2) Where claimant's employer was requested by contractors to send a teamster to load and to carry concrete sills, wheelbarrows, etc.. from a storehouse to premises where they were to be used, and claimant, a teamster, was so sent and was injured in such work, he comes within the statute (St. [1911] c 751 pt 3 § 17, if the work was a part of the contractor's business, and not merely ancillary and incidental thereto. In re Comerford, (Mass.) 113 NE 460. [b] The English act.—(1) Provides that "where any person (in this section referred to as the principal), in the course of or for the purposes of his trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him." Workmen's Compensation Act (1906) c 58 § 4 subd 1. ex obligation on the part of the princi- (2) Of this section Cozens-Hardy, M. R., has said: "I am disposed to think that that is one of the most difficult, if not the most difficult Section in this very difficult Act." Hockley v. West London Timber, etc., Co., 7 BWCC 652, ⚫ 669, 670. (3) "The section contem-inspections and measurement of his plates two persons, namely, the actual employer of the workman, called the contractor, and a hypothetical employer of the workman, called the work, the relation of master and serv- 63. Thompson v. Twiss, (Conn.) 97 save as to the results of his work. [b] Control must be complete."It is true that many authorities specify 'control' of the person performing work as the means of differentiating service from independent employment. The test of 'control,' however, means 'complete control'.' |