[Section 13 takes the place of subsec. 2 of 7 of the act of 1897, but contains the definition of a number of terms not used in the earlier act.]

b. Who are "employers." For American Cases defining this term, see post, 245.

A workman who has been receiving compensation may, upon the death of the employer, and the neglect or refusal of the next of kin to take out letters, secure the appointment of an administrator so as to be able to enforce his right to compensation, since the work

merely because there is no one standing in the position of "employer." 87

83 Porton v. Central (Unemployed) Body for London [1908] W. N. (Eng.) 242, 25 Times L. R. 102; Gilroy v. Makie [1909] S. C. 466, 46 Scot. L. R. 325.

84 Re Ryan (1911) 11 New South Wales St. Rep. 33.

85 Re Smith (1911) 17 West L. Rep. (Can.) 550.

86 Wilmerson v. Lynn & H. S. S. Co. [1913] 3 K. B. 931, (Eng.) 82 L. J. K. B. N. S. 1064, 109 L. T. N. S. 53, 29 Times L. R. 652, 57 Sol. Jo. 700, [1913] W. C. & Ins. Rep. 633, 6 B. W. C. C. 542.

87 Re Byrne (1910; Prob.) 44 Ir. Law Times, 98, 3 B. W. C. C. 591.

88 The owners of a threshing machine are the employers of a man employed by them as a road man to go along the road ahead of the thresher, but who when the machine is at work acts as trusser, and is paid by the farmer, and was so at work when injured. Reed v. Smith (1910) 3 B. W. C. C. (Eng.) 223.

A coal trimmer, although employed by an agent of the harbor commissioners, is in the employment of a firm of shipping agents who act as managers of a vessel being loaded with coal for third persons, where the trimmers are directly under the control of the agents, and are paid from the freight, the balance of which, less charges, is sent by the agents to the own ers of the vessel. Gorman v. Gibson [190910] S. C. 317, 47 Scot. L. R. 394.

Shipowners may be found to be the employers of a workman employed to assist in mooring ships, although he was engaged and paid by a stevedore, where it appears that the owners gave the money to the stevedore instead of to the workman as a matter of convenience. Pollard v. Goole & H. Steam Towing Co. (1910) 3 B. W. C. C. (Eng.) 360.

Where an agreement between the owners

In the general law of master and servant, the question frequently arises as to which of two persons is the employer of a workman who is admittedly a servant of one of them. Cases of this character, involving compensation, will be found in the note; but it is to be noted that the decisions turn on principles entirely independent of the compensation act.88

The court will not interfere with the of a vessel and the skipper provided that the skipper was to work the vessel on the best paying trade, receiving for his services two thirds of all the freight earned, out of which he was to pay all the wages for the crew, and all other expenses connected with the working of the vessel, remitting to the owner the remaining one third, and it further provided that if he had cause to give up command of the vessel, he was to advise the owner, and, if requested, to bring the vessel to certain ports free of all charges to the owner, and further provided for his leaving the vessel at a loading port, a mate employed by the skipper, who would get his full wages whether the vessel earned any freight or not, may be found to be under a contract of service with the owners. Kelly v. The Miss Evans [1913] 2 I. R. 385, 47 Ir. Law Times, 155, [1913] W. C. & Ins. Rep. 418, 6 B. W. C. C. 916.

The mate of a vessel may be found to be in the employment of the owners where, by the contract between them and the captain, the latter made all contracts for freight, and engaged the crew, and took the vessel where he wished, and the owners paid the wages of the crew if the freight was not sufficient therefor, and tonnage and pilotage expense were deducted from the gross freights, and the captain took two thirds of the residue, paying thereout all other expenses. The Victoria v. Barlow (1911) 45 Ir. Law Times, 260, 5 B. W. C. C. 570.

A member of the gang engaged in unloading sulphur from a barge is not an employee of the owner of the sulphur, where he engaged one of the gang to supply the labor necessary, and that one engaged the others and supplied the necessary tools, and the money received was divided equally among the gang, except that the leader received two pennies from each of the others,

decision of the county judge upon questions of pure fact, such as whether the respondent was the employer of the applicant.89

c. "Contract of service."

The determination of the question the owner merely directing where the sulphur should be placed. Bobbey v. Crosbie (1915) 84 L. J. K. B. N. S. (Eng.) 856, 112 L. T. N. S. 900, 8 B. W. C. C. 236.

Where a mandatory hires workmen in his own name, without disclosing his principal, and pays them with his own money or check, he is liable for any compensation to which they may be entitled because of injuries received while in such employment. Demers v. McCrae (1911) Rap. Jud. Quebec,

40 S. C. 123.

89 Pollard v. Goole & H. Steam Towing Co. (Eng.) supra (respondents held to be employers of applicant).

90 A workman who was injured while at work in the labor yard of a charitable organization, having applied there for aid, had no "contract of service." Burns v. Manchester & S. Wesleyan Mission (1908) 99 L. T. N. S. (Eng.) 579, 125 L. T. Jo. 336, 1 B. W. C. C. 305.

There is no contract of service between a dispensary medical officer and the board of poor law guardians, who appoint him to perform the statutory duties of his office. Murphy v. Enniscorthy Guardians [1908] 2 I. R. 609, 42 Ir. Law Times, 246, 2 B. W. C. C. 291.

There is no contract of service where a taxicab driver takes a cab from the owner's yard by the day, and pays over 75 per cent of the daily receipts to the owners, and retains 25 per cent, less the price of his petrol. Doggett v. Waterloo Taxi-Cab Co. [1910] 2 K. B. (Eng.) 336, 102 L. T. N. S. 874, 79 L. J. K. B. N. S. 1085, 26 Times L. R. 491, 54 Sol. Jo. 541, 3 B. W. C. C. 371; Bates-Smith v. General Motor Cab Co. [1911] A. C. (Eng.) 188, 80 L. J. K. B. N. S. 839, 27 Times L. R. 370, 4 B. W. C. C. 249.

A continuing contract within the meaning of § 13 does not exist between a farmer and a laborer who worked by the day, and came and went as he pleased, and who occasionally absented himself without notice, so as to render the farmer liable to compensation, where, when the workman presented himself for work on the morning of the day on which he was injured, he was told by the farmer that another farmer had asked him to lend him a man, and that the workman was to go and aid the second farmer in threshing operations, which he did, incurring during such employment the injuries of which he died. Boswell v. Gilbert (1909) 127 L. T. Jo. (Eng.) 146, 2 B. W. C. C. 251.

There is no contract of employment between a farmer and a quarryman who sometimes assisted the farmer in getting in his crops in the evening, and who received

whether a contract of service exists between the workman and the respondents depends upon general principles, rather than upon the construction of the compensation act. There can be no compensation unless such a contract does exist.90 Nor, in the absence of such a contract, is no money for his services, but the farmer gave him beer and sometimes a supper when the work was over, since, if this was a contract of employment, it would have been illegal under the truck act, and could not constitute a "contract of service" within the meaning of § 13 of the workmen's compensation act. Kemp v. Lewis [1914] 3 K. B. (Eng.) 543, [1914] W. N. 264, 137 L. T. Jo. 213, 83 L. J. K. B. N. S. 1535, 111 L. T. N. S. 699, 7 B. W. C. C. 422.

A letter fixer has a contract of service with a firm of enamel letter makers where he frequently obtained work from them, and was in the habit of calling regularly at their place of business and occasionally canvassed among shopkeepers to fix letters in behalf of the firm, and was paid by them in respect to the orders he received. Taylor v. Burnham [1910] S. C. 705, 47 Scot. L. R. 643, 3 B. W. C. C. 569.

Where a firm of fish curers entered into a contract with a man whereby they were to furnish him with a flit boat of which the man was to be skipper and was two employ a helper, and the flit boat was to be engaged in carrying barrels of fish from the fish stations to vessels, and empty barrels back, both for the owners and for other curers, the gross profits of the work to be divided into three parts, one for the owners and one for each of the men, and when there was no work of this character the owners were, so far as possible, to furnish other work on shore for the men, the contract was one of employment, and not of partnership. Jamieson v. Clark (1909) 46 Scot. L. R. 73, [1909] S. C. 132, 2 B. W. C. C. 228.

Where a workman engaged in quarrying stone had a partner with whom he shared the money earned, and they employed and paid five or six men to work with them, and were paid a certain sum per ton for every ton of ordinary stone, and an extra payment for every ton of building stone, and the quarry owner's manager could terminate the contract with him at any time by giving him reasonable notice, but had no power to dismiss the men employed by him, except by terminating the agreement, and the workman could work what hours he pleased, and was not obliged to work at all provided a sufficient amount of stone was sent out, but had to obey the orders of respondent manager as to the place where he was to work or kind of stone he was to send out if such orders were given, and all the tools used by the party were the property of the quarry owners, and the horse also belonged to the quarry owners, but the workman had to look after it and provide it with food, the county court judge may find that the workman was under a con

Under this clause a skilled music teacher is not a workman.94 Neither is a person who, at an exhibition of an airship, master of science. It is true that a person of that description may be employed as a workman, but the governing factor is whether he was employed as a master of science, to get the benefit of his attainments; and if the true inference from the facts is that this was the main purpose of the employment, the case is not prima facie one of employment as a workman, even though the man has to do some manual labor in putting himself in a position to give, his skilled service. The case of Simpson v. Ebbw Vale Steel, Iron & Coal Co. (Eng.) supra, reaffirms the position that the popular meaning must be given to the term 'workman,' and to call a skilled expert a workman is to travel out of the ordinary meaning of that term." Farwell, L. J., dissented on grounds which were thus forcibly stated: "In the present case there is an agreement in writing for service by a man who is a skilled workman. I should be loath to say that education is a bar to success in a claim for compensation under the act. In my view the consideration whether the applicant is a gentleman, or whether his education is good or bad, is not relevant. The case does not, in my opinion, turn so much on the construction of the agreement, though that is an important matter to consider, as on the work that was done by the deceased under it. In the agreement the undertaking of the deceased to obey all orders of those in authority in such work as might be allotted to him is put in the forefront of the matter. Under this agreement the man might be employed in such a way as to be a mere workman, or he might be something more, and which he was must depend on the event. If he had been found sufficiently skilful to be employed in the laboratory, he might have been withdrawn from manual labor; but this, as appears from the evidence of the manager, was not the case. That evidence is that when the man was disabled a foreman did his work, and that he had done no research work during the whole time that he was there; for certainly five sixths of his time he was working as an ordinary though skilled workman. The hours that he worked and the salary that he received appear to me to make no difference, and there is in my opinion nothing in the terms

But a law writer is a workman within the English act.97 So is a professional football player who had entered into a written agreement to serve the defendants for one year at a weekly wage, by playing football when required, with the team of the club, to attend regularly the training and general instruction, and not to engage himself to play football for any other person or club during the stipulated term.98 And a man employed of the agreement which overrides the fact that the man was doing, for the greater part of the time, work which would be done by an ordinary workman."

94 Simmons v. Heath Laundry Co. [1910] 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. 395, 102 L. T. N. S. 210, 26 Times L. R. 326, 54 Sol. Jo. 392, 3 B. W. C. C. 200. CozensHardy, M. R., said that there might be a contract for services, but not a contract for service.

95 Waites V.

Franco-British Exhibition (1909) 25 Times L. R. (Eng.) 441.

96 Hewitt v. Hudson's Bay Co. (1910) 20 Manitoba L. Rep. 126, 15 West. L. Rep. (Can.) 372.

97 McKrill v. Howard (1909) 2 B. W. C. C. (Eng.) 460.

98 Walker v. Crystal Palace Football Club [1910] 1 K. B. (Eng.) 87, 79 L. J. K. B. N. S. 229, 101 L. T. N. S. 645, 26 Times L. R. 71, 54 Sol. Jo. 65, 3 B. W. C. C. 53, Ann. Cas. 1913C, 25. Cozens-Hardy, M. R., and Fletcher Moulton, L. J., were of opinion that the contract was one "by way of manual labor," and that it certainly came under the more general words "or otherwise." Farwell, L. J., thus discussed the two points made by the defendants. "The appellants have made two points. They first of all say there is no contract of service with an employer, because the football player is at liberty to exercise his own initiative in playing the game. That appears to me to be no answer. There are many employments in which the workman exercises initiative, but he may or may not be bound to obey the directions of his employer when given to him. If he has no duty to obey them, it may very well be that there is no service, but here not only is the agreement by the player that he will serve, but he also agrees to obey the training and general instructions of the club. I cannot doubt that he is bound to obey any directions which the captain, as the delegate of the club, may give him during the course of the game, that is to say, any direction that is within the terms of his employment as a football player. The other point taken is that he is not a 'workman' within the act. It appears to me that it is impossible for the court to consider the practical utility of the service or

on temporary work by a distress committee under the unemployed workmen's act of 1905.99 And a blind man who, upon entering an institution for the blind, stipulated that he would give his services for what they were worth, and in return receive board, lodging, and clothing, and 5 shillings a month in money.1

The statute expressly provides that the term workman does not include a member of the employer's family, dwelling in his house,2 nor a member of the police force.3

Workmen engaged in lumbering operations are not within the provisions of the Quebec act.4

The licensed driver of a taxicab, who pays a certain per cent of the earnings

work performed. It may be sport to the amateur, but to a man who is paid for it and makes his living thereby, it is his work. I cannot assent to the proposition that sport and work are mutually exclusive terms, or hold that the man who is employed and paid to assist in something that is known as sport is therefore necessarily excluded from the definition of workman within the meaning of the act. I put, during the argument, the case of the huntsman and whips of a pack of hounds. The rest of the field ride for their own amusement, but the three I have mentioned are employed by and obey the orders of the master, and risk their necks, not entirely for their own amusement, but because they are paid to do it."

99 Gilroy v. Mackie [1909] S. C. (Scot.) 466, 2 B. W. C. C. 269. Lord Duneden said: "A pauper may be compelled to work in a poorhouse, or a prisoner in prison, by force of statute. There is, therefore, entirely wanting that freedom of contract on both sides which is of the essence of employment as we are using the term 'employment' in the sense of the act before us. But I am afraid that the difference here is that there is just the question of freedom. The unemployed need not go and ask for work unless he likes, and he need not take the work offered unless the terms suit him. If he does take the work, I think he becomes employed."

1 MacGillivray v. Northern Counties Institute [1911] S. C. 897, 48 Scot. L. R. 811, 4 B. W. C. C. 429

2 A son twenty-six years of age, who is employed by his father, lives with him, and pays him for his board and lodging, is a member of the father's family, dwelling in his house, and is not a workman. M'Dougall v. M'Dougall [1911] S. C. 426, 48 Scot. L. R. 315, 4 B. W. C. C. 373.

A son living in the same house with his father, and employed by him to aid in carrying out a contract, cannot recover from the principal, since he could not recover from the contractor, his father, under the definition of workman contained in § 13 of

to the owner, is a bailee, and not a workman.5

One member of a partnership is not entitled to compensation for injuries received while working for the partnership. But a person who owns ten sixtyfourths shares of a trading vessel, and who is employed as master by the managing owner, is entitled to compensation when injured in the course of his employment. So, a man does not cease to be a workman within the meaning of the act merely because his remuneration is a share of the profits; and payment by a percentage of the gross earnings does not of itself indicate partnership; but the facts may be such as to show that the man was a co-adventurer, and not a workman.10

9

the act. Marks v. Carne [1909] 2 K. B. (Eng.) 516, 78 L. J. K. B. N. S. 853, 100 L. T. N. S. 950, 25 Times L. R. 620, 53 Sol. Jo. 561, 2 B. W. C. C. 186.

3 Sudell, v. Blackburn Corp. (1910) 3 B. W. C. C. (Eng.) 227.

4 Provost v. St. Gabriel Lumber Co. (1910) 12 Quebec Pr. Rep. 285; Duquette v. Lake Megantic Pulp Co. (1911) 12 Quebec Pr. Rep. 359; Novico v. E. B. Eddy Co. (1911) 12 Quebec Pr. Rep. 319.

5 Smith v. General Motor Cab Co. [1911] A. C. (Eng.) 188, 80 L. J. K. B. N. S. 839, 105 L. T. N. S. 113, 27 Times L. R. 370, 55 Sol. Jo. 439, 4 B. W. C. C. 249, 1 N. C. C. A. 576.

6 Ellis v. Ellis [1905] 1 K. B. (Eng.) 324, 74 L. J. K. B. N. S. 229, 53 Week. Rep. 311, 92 L. T. N. S. 718, 21 Times L. R. 182.

7 Sharpe v. Carswell [1910] S. C. 391, 47 Scot. L. R. 335, 3 B. W. C. C. 552.

8 A contract of service exists between the owner of a sailing barge and the master, where the owner fixed the rates and directed to what dock it was to be taken, although his remuneration consisted of a half share of the profits, out of which he was to engage a mate and pay part of the wages of the third hand. Smith v. Horlock [1913] W. C. & Ins. Rep. (Eng.) 441, 109 L. T. N. S. 196, 6 B. W. Ĉ. C. 638.

9 The act is applicable to a member of a crew of a small cargo boat, whose remuneration consisted of a specified share of the gross earnings. Clark v. Jamieson [1909] S. C. 132, 46 Scot. L. R. 74.

In Jones v. The Alice & Eliza (1910) 3 B. W. C. C. (Eng.) 495, it was held that the mere fact that the master was remunerated by the payment of two thirds of the gross receipts was not sufficient to enable the court to draw the inference that the master was not the servant of the owners, where the master's wife swore that he was. the servant of the owners, and the latter declined to give any evidence upon the subject.

10 There is no contract of service between the owner of a vessel and the master, where the owner agreed to furnish the vessel and