صور الصفحة
PDF
النشر الإلكتروني

" 87

83

iff court, sheriff, sheriff clerk, pursuer, he was subject to the control and direcand act of sederunt.

tion of the ship foreman, who, if dis[Section 13 takes the place of subsec. satisfied with his services, could stop the 2 of ý 7 of the act of 1897, but contains work and send for another. 86 the definition of a number of terms not A workman who has been receiving used in the earlier act.]

compensation may, upon the death of

the employer, and the neglect or refusal b. Who are employers."

of the next of kin to take out letters, For American Cases defining this termı, secure the appointment of an adminissee post, 245.

trator so as to be able to enforce his Public bodies may be employers; such right to compensation, since the workas the central body constituted under ý man cannot be deprived of compensation 1 of the unemployed workmen act 1905, merely because there is no one standing which has provided temporary work for in the position of "employer." a workman; and the word "employ In the general law of master and server” covers the Sydney Harbor Trust ant, the question frequently arises as to Commissioners. 84 An infant employer is which of two persons is the employer of liable as any other employer under the a workman who is admittedly a servworkman's compensation act of 1908.85 ant of one of them. Cases of this char

The owners of a ship may be found to acter, involving compensation, will be be the "employers," of a workman em- found in the note; but it is to be noted ployed in weighing a cargo, although he that the decisions turn on principles enhad been selected from the list of weigh- tirely independent of the compensation ers appointed and licensed under stat- act.88 utory authority, where it appeared that The court will not interfere with the

83 Porton v. Central (Unemployed) Body of a vessel and the skipper provided that for London (1908] W. N. (Eng.) 242, 25 the skipper was to work the vessel on the Times L. R. 102; Gilroy v. Makie [1909] best paying trade, receiving for his services S. C. 466, 46 Scot. L, R. 325.

two thirds of all the freight earned, out of 84 Re Ryan (1911) 11 New South Wales which he was to pay all the wages for the St. Rep. 33.

crew, and all other expenses connected with 85 Re Smith (1911) 17 West L. Rep. the working of the vessel, remitting to the (Can.) 550.

owner the remaining one third, and it fur86 Wilmerson v. Lynn & H. S. S. Co. ther provided that if he had cause to give [1913] 3 K. B. 931, (Eng.) 82 L. J. K. B. up command of the vessel, he was to advise N. S. 1064, 109 L. T. N. S. 53, 29 Times the owner, and, if requested, to bring the L. R. 652, 57 Sol. Jo. 700, [1913] W. C. & vessel to certain ports free of all charges Ins. Rep. 633, 6 B. W. C. C. 542.

to the owner, and further provided for his 87 Re Byrne (1910; Prob.) 44 Ir. Law leaving the vessel at a loading port, a mate Times, 98, 3 B. W. C. C. 591.

employed by the skipper, who would get his 88 The owners of a threshing machine are full wages whether the vessel earned any the employers of a man employed by them freight or not, may be found to be under as a road man to go along the road ahead a contract of service with the owners. of the thresher, but who when the ma- Kelly v. The Miss Evans [1913] 2 I. R. 385, chine is at work acts as trusser, and is 47 Ir. Law Times, 155, [1913] W. C. & Ins. paid by the farmer, and was so at work Rep. 418, 6 B. W. C. C. 916. when injured. Reed v. Smith (1910) 3 B. The mate of a vessel may be found to W. C. C. (Eng.) 223.

be in the employment of the owners where, A coal trimmer, although employed by by the contract between them and the capan agent of the harbor commissioners, is tain, the latter made all contracts for in the employment of a firm of shipping freight, and engaged the crew, and took the agents who act as managers of a vessel vessel where he wished, and the owners being loaded with coal for third persons, paid the wages of the crew if the freight where the trimmers are directly under the was not sufficient therefor, and tonnage and control of the agents, and are paid from pilotage expense were deducted from the the freight, the balance of which, less gross freights, and the captain took two charges, is sent by the agents to the own thirds of the residue, paying thereout all ers of the vessel. Gorman v. Gibson (1909- other expenses.

The Victoria v. Barlow 10] S. C. 317, 47 Scot. L. R. 394.

(1911) 45 Ir. Law Times, 260, 5 B. W. C. Shipowners may be found to be the em C. 570. ployers of a workman employed to assist A member of the gang engaged in unin mooring ships, although he was engaged loading sulphur from a barge is not an emand paid by a stevedore, where it appears ployee of the owner of the sulphur, where that the owners gave the money to the he engaged one of the gang to supply the stevedore instead of to the workman as a labor necessary, and that one engaged the matter of convenience. Pollard v. Goole & others and supplied the necessary tools, and H. Steam Towing Co. (1910) 3 B. W. C. c. the money received was divided equally (Eng.) 360.

among the gang, except that the leader re. Where an agreement between the owners ceived two pennies from each of the others,

decision of the county judge upon ques- / whether a contract of service exists betions of pure fact, such as whether the tween the workman and the respondents respondent was the employer of the ap- depends upon general principles, rather plicant.89

than upon the construction of the comc. Contract of service."

pensation act. There can be no compen

sation unless such a contract does exist.90 The determination of the question Nor, in the absence of such a contract, is the owner merely directing where the sul- , no money for his services, but the farmer phur should be placed. Bobbey v. Crosbie gave him beer and sometimes a supper when (1915) 84 L. J. K. B. N. S. (Eng.) 856, 112 the work was over, since, if this was a conL. T. N. S. 900, 8 B. W. C. C. 236.

tract of employment, it would have been Where a mandatory hires workmen in illegal under the truck act, and could not his own name, without disclosing his princi- constitute a “contract of service” within pal, and pays them with his own money or the meaning of § 13 of the workmen's comcheck, he is liable for any compensation pensation act. Kemp v. Lewis [1914] 3 to which they may be entitled because of K. B. (Eng.) 543, [1914] W. N. 264, 137 injuries received while in such employment. L. T. Jo. 213, 83 L. J. K. B. N. S. 1535, Demers v. McCrae (1911) Rap. Jud. Quebec, 111 L. T. N. S. 699, 7 B. W. C. C. 422. 40 S. C. 123.

A letter fixer has a contract of service 89 Pollard v. Goole & H. Steam Towing with a firm of enamel letter makers where Co. (Eng.) supra (respondents held to be he frequently obtained work from them, and employers of applicant).

was in the habit of calling regularly at 90 A workman who was injured while their place of business and occasionally at work in the labor yard of a charitable canvassed among shopkeepers to fix letters organization, having applied there for aid, in behalf of the firm, and was paid by them had no "contract of service." Burns v. in respect to the orders he received. Taylor Manchester & S. Wesleyan Mission (1908) v. Burnham [1910] S. C. 705, 47 Scot. L. 99 L. T. N. S. (Eng.) 579, 125 L. T. Jo. 336, R. 643, 3 B. W. C. C. 569. 1 B. W. C. C. 305.

Where a firm of fish curers entered into a There is no contract of service between contract with a man whereby they were to a dispensary medical officer and the board furnish him with a flit boat of which the of poor law guardians, who appoint him to man was to be skipper and was two employ perform the statutory duties of his office. a helper, and the fit boat was to be engaged Murphy v. Enniscorthy Guardians [1908] in carrying barrels of fish from the fish sta2 I. R. 609, 42 Ir. Law Times, 246, 2 B. W. tions to vessels, and empty barrels back, C. C. 291.

both for the owners and for other curers, There is no contract of service where the gross profits of the work to be divided a taxicab driver takes a cab from the own into three parts, one for the owners and er's yard by the day, and pays over 75 per one for each of the men, and when there was cent of the daily receipts to the owners, and no work of this character the owners were, retains 25 per cent, less the price of his so far as possible, to furnish other work on petrol. Doggett v. Waterloo Taxi-Cab Co. shore for the men, the contract was one of [1910] 2 K. B. (Eng.) 336, 102 L. T. N. S. employment, and not of partnership 874, 79 L. J. K. B. N. S. 1085, 26 Times L. Jamieson v. Clark (1909) 46 Scot. L. R. 73, R. 491, 54 Sol. Jo. 541, 3 B. W. C. C. 371; (1909) S. C. 132, 2 B. W. C. C. 228. Bates-Smith v. General Motor Cab Co. Where a workman engaged in quarrying [1911) A. C. (Eng.) 188, 80 L. J. K. B. N. S. stone had a partner with whom he shared 839, 27 Times L. R. 370, 4 B. W. C. C. the money earned, and they employed and 249.

paid five or six men to work with them, A continuing contract within the meaning and were paid a certain sum per ton for of § 13 does not exist between a farmer every ton of ordinary stone, and an extra and a laborer who worked by the day, payment for every ton of building stone, and came and went as he pleased, and who and the quarry owner's manager could termoccasionally absented himself without no inate the contract with him at any time by tice, so as to render the farmer liable to giving him reasonable notice, but had no compensation, where, when the workman power to dismiss the men employed by him, presented himself for work on the morning except by terminating the agreement, and of the day on which he was injured, he was the workman could work what hours he told by the farmer that another farmer had pleased, and was not obliged to work at all asked him to lend him a man, and that the provided a sufficient amount of stone was workman was to go and aid the second sent out, but had to obey the orders of refarmer in threshing operations, which he spondent manager as to the place where did, incurring during such employment the he was to work or kind of stone he was to injuries of which he died. Boswell v. Gil- send out if such orders were given, and all bert (1909) 127 L. T. Jo. (Eng.) 146, 2 B. the tools used by the party were the propW. C. C. 251.

erty of the quarry owners, and the horse There is no contract of employment be- also belonged to the quarry owners, but the tween a farmer and a quarryman who some workman had to look after it and provide times assisted the farmer in getting in it with food, the county court judge may his crops in the evening, and who received | find that the workman was under a con

In an

the employer liable under ý 8 to contri- held in one case that the certificated manbutions to subsequent employers. 90a ager of a coal mine, who was paid a

yearly salary, and who, although his d. Who are workmen."

duties required his presence in the mine, 1. In general,

was not required to engage in manual For American decision defining this labor, was not a "workman." 92 term, see post, 246.

other case a graduate in science, who

had entered the employment of a dye Under the definition clause of the

and chemical manufacturing company, workman's compensation act 1897, the term “workman” included every person

under a written agreement for five years' who was engaged in an employment to service, and upon terms with regard to which the act applied, “whether by way salary, commission on profits of invenof manual labor or otherwise." This

tions or improvements in manufacturdescription “made it possible for a man ing discovered by him, restrictions as to be a workman within the meaning of to employment after the termination of the act, although he might not be en- his engagement, and disclosure of matgaged in manual labor," 91 but it was

ters relating to the business of the comdeemed to be applicable only to those pany and his own researches, was declasses of employees whose remunera- clared not to be a "workman," although tion could properly be designated as his employment involved manual labor "wages.” In this point of view it was on his part.93 tract of service within the meaning of the 91 Simpson v. Ebbw Vale Steel, Iron & act. Jones v. Penwyllt Dinas Silica Brick Coal Co. [1905) 1 K. B. (Eng.) 453, 74 Co. [1913] W. C. & Ins. Rep. (Eng.) 394, 6 L. J. K. B. N. S. 347, 53 Week. Rep. 390, 92 B. W. C. C. 492.

L. T. N. S. 282, 21 Times L. R. 209. An old man employed by another work- 92 Simpson v. Ebbw Vale Steel, Iron & man, who was authorized only to employ a Coal Co. (Eng.) supra. Collins, M. R., said: boy, is not in the employment of the em- "The popular meaning must be given to a ployer. M'Clelland v. Todd (1909; Record - definition where we are confronted with er's Ct.) 43 Ir. Law Times, 75, 2 B. W. C. C. such an expression as 'wages,' and we must 472.

interpret the act as applying to persons In the absence of evidence to show an whom, ex hypothesi, the legislature regards express hiring, a contract of employment as not being in a position to protect themwill not be presumed between a hop grower selves. None of these considerations apply and a girl of seventeen, who accompanied to the case of a person holding the position and assisted her aunt in picking hops for of a certificated manager of a colliery, who the grower, where it was the custom for comes within a very different category from the heads of family, when engaged in pick- that of an ordinary workman. I do not say ing hops, to take the entire family with that a person in the position of the deceased them. Richards v. Pitt (1915) 84 L. J. K. B. is absolutely excluded from the possibility N. S. (Eng.) 1417.

of coming within the act, for it is possible The county court judge may find that that such a man might in fact work as a there is no contract of service between the workman, though I do not know that such captain of a canal boat and the owners, a contingency is at all probable; there where he was working under a system might, however, be facts in a particular whereby he took two thirds of the gross case from which the conclusion might be receipts of voyages in one direction, and drawn that, although the man was a cer: three quarters in the other, paying for all tificated manager, he was also a workman." labor and current expenses out of his por- 93 Bagnall v. Levinstein (1907] 1 K. B. tion, and he had power to refuse any cargo (Eng.) 531, 76 L. J. K. B. N. S. 234, 96 L. T. offered by the owners as unremunerative, N. S. 184, 23 Times L. R. 165. The position and on the voyage the boat was absolutely of

M. R., and Cozens-Hardy, J., under his control. Beck v. Hill & Sons, was that the governing factor in determin(1915) 8 B. W. C. C. (Eng.) 592.

ing whether the man was a workman withSee also the cases cited in note 14, infra. in the meaning of the act was the question

90a A coach builder who, after the ap- what he was employed to do; and that the pointment of a trustee to wind up the busi- judge misdirected himself by not taking into ness, was appointed by the trustee to help consideration the terms of the employment in the winding up, and spend about half an as disclosed in the agreement, and in treathour every day helping the trustee in su. ing the performance of manual labor in the pervising the workmen, paying their wages discharge of his duties as conclusive that and keeping a day book, is not under a the man was a workman within the meancontract of service with the trustee, so as ing of the act. The master of the rolls reto render the latter liable to contribution marked: “The root of the matter is that under § 8 (1) (c) (ii.) to a coach painter each case must be decided in view of that for whom the coach builder was working which the person whom it is sought to when he contracted lead poisoning. Pears treat as a workman was employed to do. v. Gibbons [1913] W. C. & Ins. Rep. (Eng.) The learned judge has not dealt quite fairly 469, 6 B. W. C. C. 722.

with the argument as to this man being a

95

98

Under the definition clause of the exist-, is engaged to explain the various parts ting act of 1906 (§ 13), certain classes of the machine and the exploits of the of employees are expressly excluded operator.9 And a salesman is not a from the scope of the term "workman,” workman under the Manitoba statute.96 and with these exceptions the term means But a law writer is a workman with"any person who has entered or works in the English act.97 So is a professional under a contract of service or appren- football player who had entered into a ticeship with an employer, whether by written agreement to serve the defendway of manual labor, clerical work, or ants for one year at a weekly wage, by otherwise, and whether the contract is playing football when required, with the expressed or implied, is oral or in writ- team of the club, to attend regularly the ing.”

training and general instruction, and Under this clause a skilled music teach- not to engage himself to play football for er is not a workman.94 Neither is a per- any other person or club during the son who, at an exhibition of an airship,'stipulated term. And a man employed master of science. It is true that a person of the agreement which overrides the fact of that description may be employed as a that the man was doing, for the greater workman, but the governing factor is part of the time, work which would be whether he was employed as a master of done by an ordinary workman.” science, to get the benefit of his attain. 94 Simmons v. Heath Laundry Co. [1910] ments; and if the true inference from the 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. facts is that this was the main purpose of 395, 102 L. T. N. S. 210, 26 Times L. R. 326, the employment, the case is not prima 54 Sol. Jo. 392, 3 B. W. C. C. 200. Cozensfacie one of employment as a workman, Hardy, M. R., said that there might be a even though the man has to do some manual contract for services, but not a contract for labor in putting himself in a position to give, service. his skilled service. The case of Simpson v.

95 Waites v. Franco-British Exhibition Ebbw Vale Steel, Iron & Coal Co. (Eng.) (1909) 25 Times L. R. (Eng.) 441. supra, reaffirms the position that the popu 96 Hewitt v. Hudson's Bay Co. (1910) 20 lar meaning must be given to the term Manitoba L. Rep. 126, 15 West. L. Rep. ‘workman,' and to call a skilled expert a (Can.) 372. workman is to travel out of the ordinary 97 McKrill v. Howard (1909) 2 B. W. C. C. meaning of that term.” Farwell, L. J., (Eng.) 460. dissented on grounds which were thus

98 Walker

v. Crystal Palace Football forcibly stated: “In the present case there Club (1910) 1 K. B. (Eng.) 87, 79 L. J. K. is an agreement in writing for service by B. N. S. 229, 101 L. T. N. S. 645, 26 Times a man who is a skilled workman. I should L. R. 71, 54 Sol. Jo. 65, 3 B. W. C. C. 53, be loath to say that education is a bar to Ann. Cas. 1913C, 25. Cozens-Hardy, M. R., success in a claim for compensation under and Fletcher Moulton, L. J., were of opin. the act, In my view the consideration ion that the contract was one "by way of whether the applicant is a gentleman, or manual labor,” and that it certainly came whether his education is good or bad, is not under the more general words “or otherrelevant. The case does not, in my opinion, wise.” Farwell, L. J., thus discussed the turn so much on the construction of the two points made by the defendants. “The agreement, though that is an important appellants have made two points. They matter to consider, as on the work that was first of all say there is no contract of servdone by the deceased under it. In the agree. ice with an employer, because the football ment the undertaking of the deceased to player is at liberty to exercise his own inobey all orders of those in authority in such itiative in playing the game. That appears work as might be allotted to him is put in to me to be no answer.

There are many the forefront of the matter.

Under employments in which the workman exerthis agreement the man might be employed cises initiative, but he may or may not be in such a way as to be a mere workman, or bound to obey the directions of his emhe might be something more, and which he ployer when given to him. If he has no was must depend on the event. If he had duty to obey them, it may very well be been found sufficiently skilful to be em- that there is no service, but here not only ployed in the laboratory, he might have is the agreement by the player that he will been withdrawn from manual labor; but serve, but he also agrees to obey the trainthis, as appears from the evidence of the ing and general instructions of the club. manager, was not the case. That evidence I cannot doubt that he is bound to obey any is that when the man was disabled a fore- directions which the captain, as the deleman did his work, and that he had done no gate of the club, may give him during the research work during the whole time that course of the game,--that is to say, any he was there; for certainly five sixths of his direction that is within the terms of his time he was working as an ordinary though employment as football player.

The skilled workman. The hours that he other point taken is that he is not a 'work. worked and the salary that he received man' within the act. It appears to me appear to me to make no difference, and that it is impossible for the court to conthere is in my opinion nothing in the terms 'sider the practical ntility of the service or

a

8

and pay

9

em

on temporary work by a distress com- , to the owner, is a bailee, and not a mittee under the unemployed workmen's workman.5 act of 1905.99 And a blind man who, One member of a partnership is not upon entering an institution for the entitled to compensation for injuries blind, stipulated that he would give his received while working for the partnerservices for what they were worth, and ship. But a person who owns ten sixtyin return receive board, lodging, and fourths shares of a trading vessel, and clothing, and 5 shillings a month in who is employed as master by the manmoney.

aging owner, is entitled to compensation The statute expressly provides that when injured in the course of his emthe term workman does not include a ployment. So, a man does not cease member of the employer's family, dwel- to be a workman within the meaning of ling in his house, nor a member of the the act merely because his remuneration police force. 3

is a share of the profits; Workmen engaged in lumbering opera- ment by a percentage of the gross earntions are not within the provisions of ings does not of itself indicate partnerthe Quebec act.4

ship; but the facts may be such as The licensed driver of a taxicab, who to show that the man was a co-advenpays a certain per cent of the earnings turer, and not a workman.10 work performed. It may be sport to the the act. Marks v. Carne [1909] 2 K. B. amateur, but to a man who is paid for it (Eng.) 516, 78 L. J. K. B. N. S. 853, 100 and makes his living thereby, it is his L. T. N. S. 950, 25 Times L. R. 620, 53 Sol. work. I cannot assent to the proposition Jo. 561, 2 B. W. C. C. 186. that sport and work are mutually exclu- 3 Sudell. v. Blackburn Corp. (1910) 3 B. sive terms, or hold that the man who is em- W. C. C. (Eng.) 227. ployed and paid to assist in something that 4 Provost v. St. Gabriel Lumber Co. (1910) is known as sport is therefore necessarily 12 Quebec Pr. Rep. 285; Duquette v. Laké excluded from the definition of workman Megantic Pulp Co. (1911) 12 Quebec Pr. Rep. within the meaning of the act. I put, dur- 359; Novico v. E. B. Eddy Co. (1911) 12 ing the argument, the case of the huntsman Quebec Pr. Rep. 319. and whips of a pack of hounds. The rest 5 Smith v. General Motor Cab Co. [1911] of the field ride for their own amusement, A. C. (Eng.) 188, 80 L. J. K. B. N. S. 839, but the three I have mentioned are 105 L. T. N. S. 113, 27 Times L. R. 370, 55 ployed by and obey the orders of the 'Sol. Jo. 439, 4 B. W. C. C. 249, 1 N. C. master, and risk their necks, not entirely C. A. 576. for their own amusement, but because they 6 Ellis v. Ellis [1905] 1 K. B. (Eng.) 324, are paid to do it."

74 L. J. K. B. N. S. 229, 53 Week. Rep. 311, 99 Gilroy v. Mackie [1909) S. C. (Scot.) 92 L. T. N. S. 718, 21 Times L. R. 182. 466, 2 B. W. C. C. 269. Lord Duneden Sharpe v. Carswell (1910] S. C. 391, 47 said: “A pauper may be compelled to work Scot. L. R. 335, 3 B. W. C. Č. 552. in a poorhouse, or a prisoner in prison, by 8 A contract of service exists between the force of statute. There is, therefore, en- owner of a sailing barge and the master, tirely wanting that freedom of contract on where the owner fixed the rates and directboth sides which is of the essence of em- ed to what dock it was to be taken, alployment as we are using the term 'em- though his remuneration consisted of a half ployment in the sense of the act before us. share of the profits, out of which he was to But I am afraid that the difference here engage a mate and pay part of the wages is that there is just the question of freedom. of the third hand. Smith v. Horlock (1913) The unemployed need not go and ask for W. C. & Ins. Rep. (Eng.) 441, 109 L. T. N. work unless he likes, and he need not take S. 196, 6 B. W. C. C. 638. the work offered unless the terms suit him. 9 The act is applicable to a member of a If he does take the work, I think he becomes crew of a small cargo boat, whose remuneremployed."

ation consisted of a specified share of the 1 MacGillivray v. Northern Counties Insti- gross earnings. Clark v. Jamieson (1909) tute [1911] S. C. 897, 48 Scot. L. R. 811, S. C. 132, 46 Scot. L. R. 74. 4 B. W. C. C. 429.

In Jones v. The Alice & Eliza (1910) 3 2 A son twenty-six years of age, who is B. W. C. C. (Eng.) 495, it was held that employed by his father, lives with him, and the mere fact that the master was remupays him for his board and lodging, is a nerated by the payment of two thirds of the member of the father's family, dwelling in gross receipts was not sufficient to enable his house, and is not a workman. M'Doug. the court to draw the inference that the all v. M'Dougall (1911] S. C. 426, 48 Scot. master was not the servant of the owners, L. R. 315, 4 B. W. C. C. 373.

where the master's wife swore that he was. A son living in the same house with his the servant of the owners, and the latter father, and employed by him to aid in declined to give any evidence upon the subcarrying out a contract, cannot recover from ject. the principal, since he could not recover 10 There is no contract of service between from the contractor, his father, under the the owner of a vessel and the master, where definition of workman contained in § 13 of the owner agreed to furnish the vessel andi

7

« السابقةمتابعة »