Imágenes de páginas
PDF
EPUB

31.

a

compensation, under a statute making no exception the ground that the services of the employee have in favor of infants or other persons under dis- been transferred to another, he must show that the ability.27

servant has in fact consented to the transfer of [037] B. Who Are Employers. The acts quite his services to the new master, has entered on his generally define the meaning of the word " em- service, and has submitted himself to his direction ployer as employed in their text,28 but apart from and control.31 Where, under the statute, the emsuch definitions the question of whether a particu- ployer must employ workmen in hazardous employlar person stands in the relation of employer to ments which in turn must be carried on for pecuone claiming as employee obviously depends, so far niary gain, the state, although included within the as the contract of hire is involved, on the princi- meaning of the word “ employer,” must, in order ples governing the status of master and servant to be within the provisions of the compensation act, generally.29 The terms “ employer” and “em- be employing workmen in hazardous occupations ployee" are manifestly complementary.30 Where for pecuniary gain, in like manner as other eman employer seeks to be relieved from liability on ployers.32 and note (so holding, especially in | v. Wilson, (1901) 1 Q. B. 35. 3 WCC | Rep. 779. (8) Coal trimmer selected view of the fact that an amendment 155; Percival v. Garner, [1900] ? Q. by harbor commissioners and paid excluding trainmen, section men, and B. 406, 2 WCC 99; Cass v. Butler, and superintended by shipping agents. linemen from the provisions of the [1900] 1 Q. B. 777, 2 WCC 87; Mason Gorman v. Gibson, (1910] S. C. 317. act was defeated by the legislature). v. Dean, [1900] 1 Q. B. 770, 2 WCC Relationship generally see Master

27. Re Smith, Alta.) 17 WestLR 91; Stead v. Moore, 2 WCC_96; Her- and Servant (26 Cyc 966]. 550.

ron v. Charnley-The Rhea Fibre Co., 30. Rongo v. Waddington, 87 N. J. 28. See statutory provisions; and 2 WCC 24.

L. 395, 94 A 408. Western Metal Supply Co. v. Pills- 29. Western Metal_Supply Co. v. Necessity and sufficiency of relabury, (Cal.) 156 P 491; Rongo v. Wad-Pillsbury, (Cal.) 156 P 491 (holding tion of master and servant see infra dington, 87 N. J. L. 395, 94 A 408; that under the workmen's compensa- $38. Powley v. Vivian, 169 App. Div. 170, tion act of 1913, § 13 of which de

Jackson v. Erie R. Co., 86 N. 154 NYS 426. fines an "employer" as every person,

J. L, 550, 91 A 1035. (a) Voluntary association of em- firm, voluntary association, and pri- [a] Transfer of control.-"In deployers.-Where a night watchman vate corporation who has any person termining whether in a particular was employed by six different firms, in service under any appointment or act, he is the servant of his original each acting independently of the contract of hire, and $14 of which master or of the person to whom he others in making its agreement with defines "employé" as every person in has been furnished, the general test the watchman, they did not compose the service of an employer under any is whether the act is done in business

voluntary association employing appointment or contract of hire, even of which the person is in control as him within the workmen's compensa- if the relation is the same as that of a proprietor, so that he can at any tion act $ 13. Western Metal Supply master and servant under Civ. Code time stop it or continue it, and deterCo. v. Pillsbury, (Cal.) 156 P 491. $ 2009, defining a “servant" as one mine the way in which it shall be

[b] Joint and several liability: who is employed to render personal done, not merely in reference to the Where a workman while engaged in service to his employer otherwise result to be reached, but in reference the employment of a glass merchant than in the pursuing of an independ- to the method of reaching the rein repairing the roof of a factory ent calling and who in such service sult.” Pigeon's Case, 216 Mass. 51, occupied by a firm of wool manufac- remains entirely under the control 53, 102 NE 932, AnnCas1915A 737 turers fell from the scaffold on the and direction of the latter, a night [quot Knowlton, C. J., in Shepard v. roof and was killed, and his depend- watchman who was employed by six Jacobs, 204 Mass. 110, 112, 90 NE ents claimed compensation from the different firms, each acting independ- 392, 134 AmSR 618, 26 LRANS 442): glass merchant and the firm of wool ently of the other, is an employee of [b] Person hiring team and manufacturers jointly and severally, the one on whose premises he was

driver.-(1) Where the owner of a or severally, or in such proportions | killed while in the discharge of his team hired it to another at a fixed as to the court should seem just, it duties). But see Rongo v. Wadding- price per day, which included wagon, was held that as the act imposed no ton, 87 N. J. L. 395, 397. 94 A 408 horses, and driver, the driver was joint liability the application as di- here the court aid: We are con- the employee of the owner. Rongo rected against the two defenders cerned with the meaning of the stat- v. Waddington, 87 N. J. L 395, 94 jointly and severally was incompe- ute which undertakes by the implied

A 408. (2) “It commonly has been tent and should be dismissed. Herd assent of the parties to create a con

held in cases where horse and V. Summers, 7 F. (Ct. Sess.) 870. tract on the part of the employer to

driver have been let by a general [c] In case of industrial diseases. compensate his employe in a specific employer into the service of another -Under the English act of 1906 $ 8, way and to a specified amount for in- that the driver is subject to

the in case of certain scheduled indus- jury or death arising out of or in the

control and therefore is the agent trial diseases due to the nature of course of the employment. We must,

of his general employer as to the any employment in which the work- therefore, look to the statute to as- care and management of the horse man was employed at any time dur- certain who is intended by the word and vehicle." Pigeon's Case, 216 ing the twelve months previous to the employer,' and who by the word Mass. 51, 53, 102 NE 932, AnnCas date of disablement, compensation is employe").

1915A 737. (3) That claimant's emrecoverable from the employer who [a] Hiring by mandatary.-The ployer was requested by contractors last employed the workman in the hiring and employment of a workman to send a teamster to carry and to employment to the nature of which by a mandatary, in his own name and load some concrete sills, and that the disease was due. Such employer without disclosing his principal, claimant

sent and, while asmay, however, be relieved and shift establishes between them the relation sisted by the son of one of the conthe burden to some other employer of employer and employee and enti- tractors in carrying to his team by showing that the disease was in tles the representatives of the work- some sills selected by the contractfact contracted while in the employ- man, in case of his death by accident ors, was injured, does not show ment of such other employer; and in the course of his work, to the com-. claimant to

be a

"servants of the further, where the disease is of such pensation provided in Quebec Rev. contractors, or engaged in the

nature as to be contracted by a St. (1909) § 7322. Demers v. Mc- "usual course of business" of the gradual process, any other employers Crae, 40 Que. Super. 123.

contractors, within the workmen's who during the said twelve months [b] Applications of rule

have

compensation act (St. [1911] c 751). employed the workman in the em- been made to: (1) Engineer on char- In re Comerford, (Mass.) 113 NE ployment to the nature of which the tered steam tug. Mackinnon y. Mil- 160. (4) Where an employer hired disease is due are liable to contribute ler, 2 BWCC 64. (2) Employee of the services of his team and an emto the employer from whom compen-| relief committee. Porton V. Central ployee to another to haul sand, he sation is recoverable. Barron (Unemployed) Body for London, was the employer liable for compenSeaton Burn Coal Co., [1915) 1 K. B. (1909) 1 K. B. 173, 2 BWCC_296; Gil- sation to the employee for an injury 756, 8 BWCC 218; Dean v. Rubian Art roy V. Mackie, 2 BWCC 269.

(3) sustained while loading sand, in a Pottery, [1914] 2 K. B. 213, 7 BWCC | Threshing machine hand. Reed V. pit for the purpose of hauling it. 209; Mallinder v. Moores, [1912] 2 Smith, 3 BWCC 223. (4) Employee Dale v. Saunders, 218 N, Y. 59, 112 K. B. 124, 5 BWCC 362; Russell v. of stevedore. Pollard v. Goole, etc., NE 571 [aff 171 App. Div. 528, 157 Keary, 8 BWCC 410; Glancy v. Wat- Co., 3 BWCC 360. (5) Taxicab driver NYS 1062). son, 8 BWCC 391; MCTaggart v. Barr, working percentage. Smith

[c] Doctrine of respondeat supe8 BWCC 376; Merry v. McGowan, 8 General Motor Cab Co., [1911] A. C. rior is inapplicable. Dale V. SaundBWCC 344; Timpson v. Mowlem, 8 188, 4 BWCC 249; Doggett v. Water- ers, 218 N. Y. 59, 112 NE 571 [aff BWCC 178; Burnham V. Taylor, 3 loo Taxi-Cab Co., (1910] 2 K. B. 336, 171 App. Div. 528, 157 NYS 1062). BWCC 569: Lees v. Waring. 2 BWCC 3 BWCC 371; Bates-Smith v. General 32, Allen v. State, 160 NYS 85. 474; Greenhill v. Glasgow Daily Rec- Motor Cab Co., 3 BWCC 500. (6) [a] Application of rule.-An emord. 2 BWCC 244; Curtis v. Black, 2 Mate of vessel engaged by captain. ployee of the highway department BWCC 239.

Ship Victoria v. Barlow, 5 BWCĆ 570; of the state of New York, engaged [d] Under the English act of 1897, Standing v, Eastwood, 5 BWCC 268. as a foreman of a concrete gang dothe employer must also be an "under-1 (7) Member of squad of skilled work- / ing maintenance and repair work on taker" as defined by the act. Merrill men. McCready v. Dunlop, 37 Sc. L. a state road on which the state was

a

was

a

on

V.

a

a

VIII. EMPLOYEES WITHIN INTENT OF ACTS [038] A. Who Are Employees in General. The contract of employment is essential, however, in provisions of a compensation act as to the em- order that a person may be an employee,34 although ployees included are to be construed broadly.33 A doing its own repair work by its | K. B. 510, 6 WCC 107. (3) A mem

ist.

In re Fenz, Op. Sol. Dept. Labor own equipment and force, is not en- ber 0 the orchestra on a vessel is 116. titled to

compensation. Allen V. not a workman, nor is he a member 34. Conn.-Sibley V. State, 89 State, 160 NYS 85.

of the crew. Brailey

v.

Black, Conn. 682, 93 A 161, LRA1916C 1087. 33. In re Donovan, 217 Mass, 76, [1912] 134 L. T. J. 138.

N. J.-Rongo v. Waddington, 87 N. 104 NE 431, AnnCas1915C 778; Kier- [f] Persons held artisans or J. L. 395, 94 A 408. nan v. Friestedt Underpinning Co., laborers under federal act-(1) An Wash.-Hillestad V. State Indus171 App. Div. 539, 157 NYS 900; employee designated a messenger trial Ins. Commn., 80 Wash. 426, 141 Lysons v. Knowles, [1901) A. C. 79, but engaged in work of the laboring P913, AnnCas1916B 789. 3 WCC 1.

class. In re Mullins, Op. Sol. Dept. Eng: -Kemp v. Lewis, [1914] 3 K. B. "The act [Stat. 1911 c 751) makes Labor 58. (2) A sailor working on 543, 7 BWCC 422; Richards v. Wrexno distinction between wise or fool- a dredge and assisting in dredge ham, etc., Collieries, (1914) 2 K. B. ish, skilled or inexperienced, healthy work. In re Zacias, Op. Sol. Dept. 497; Wray v. Taylor, 109 L. T. Rep. or diseased employees. All who Labor 62. (3) An employee ap- N. S. 120; Richards v. Pitt, 8 BWCC rightly are describable as employees | pointed as special laborer-mes-525; Bobbey v. Crosbie, 8 BWCC 236; come within the act.' Madden's senger engaged on laborer or mes- Pears V. Gibbons, 6 BWCC 722; Case, 222 Mass. 487, 494, 111 NE 379, senger work, except when detailed Lewis v. Stanbridge, 6 BWCC_568 LRA1916D 1000.

to clerical work. In re Adler, Op. (holding contract established); Boon (a) Under the New York Act "the Sol. Dept. Labor 63. (4) A police- v. Quance, 3 BWCC 106; McClelland word 'employee' means a person who man or watchman. In re Golden, V. Todd, 2 BWCC 472; Murphy v. is engaged in a hazardous employ- Op. Sol. Dept. Labor 68. (5) A Enniscorthy Bd. of Guardians, 2 ment in the service of an employer packer in navy yard storeroom

BWCC 291; Boswell V. Gilbert, 2 carrying on or conducting the same employed to handle, arrange, and list BWCC_251; Spiers v. Elderslie SS. upon the premises, or at the plant, stock. In re Crandall, Op. Sol. Dept. Co., 2 BWCC 205; Burns v. Manchesor in the course of his employment Labor 77. (6) A sanitary inspector, ter, etc., Mission, 1 BWCC 305. See away from the plant of his em- Canal Zone. In re Pickett, Op. Sol. also Williams v. South Wales, etc., ployer." Dale v. Saunders, 218 N. Y. Dept. Labor 80. (7) Astoreroom Football Assoc., (1913) 57 Sol. J. 59, 63, 112 NE 571 [aff 171 App. Div. clerk, Canal Zone. In re Inniss, Op. 228 (compensation refused to foot528, 157 NYS 1062]. To same effect Sol. Dept. Labor 81. (8) A rodman ball referee). Post V. Burger, 216_N. Y. 544, 111 with a surveying party, also acting Que.- Wilston v. Grand Trunk R. NE 351, AnnCas1916B 158.

as chainman and axman. In re Wil- Co., 47 Que. Super. 67. [b] Persons held employees.-(1) liams, Op. Sol. Dept. Labor 87. (9) “The law in its tenor and terms An employee of a contractor, who A survey man. In re Hott, Op. Sol. contemplates that the relation behad been in his employ for about Dept. Labor 89. (10) A time in-tween employer and employee shall eight months at a daily wage pay-spector. In re Van Sittert, Op. Sol. possess some element of certainty. able weekly, and who on appearing Dept. Labor 90, (11) An acting in- It implies, if indeed it does not literfor work one morning a little late spector, normally a working foreman ally provide, that there shall be an was told by the superintendent that of laborers. In re Keating, Op. Sol. actual contractual relation between he need not work because he thought Dept. Labor 91. (12) A working the parties—that is, an agreement that he had been drinking and was foreman of laborers. In re Kline, to labor for an agreed wage or comnot in a fit condition to go to work, Op. Sol. Dept. Labor 92. (13) An pensation." Hillestad State Inand who while leaving the premises employee designated an inspector dustrial Ins. Commn., 80 Wash. 426, tripped and fell and was 'injured, and without any duty of supervision | 429. 141 P 913, AnnCas1916B 789. was a regular "employee" there in or superintendence. In re Baker, [a] Employee of several employthe performance of his duties as Op. Sol. Dept. Labor 100. (14) A ers. The fact that a person is worksuch. Kiernan v. Friestedt Under- rigger and diver. In re Lagerholm, ing at the same time for different pinning Co., 171 App. Div. 539, 157 Op. Sol. Dept. Labor 104. (15) A employers is not necessarily inconNYS 900. (2) A shareholder and pilot or master of a vessel who per: sistent with the relation of master vice president of a corporation is an forms labor of a physical or manual and servant between any one of such "employee" thereof, within the work- nature similarly to other members employers and himself. Western men's compensation act, where he of the crew. In re Sturdevant, Op. Metal Supply Co. v. Pillsbury, (Cal.) worked with regular workmen, al- Sol. Dept. Labor 106. (16) A master 156 P 491. though he was general

foreman. of a dredge performing work in the [b] Legality of contract.-A conBeckman V. Oelerich, 160 NYS 791. nature of a "handy man." In re tract of employment to learn to (3) A working foreman. Foucher v. Waters, Op. Sol. Dept. Labor 110. operate an electric passenger elevaMorache, 46 Que. Super. 498. (4)| (17) A messenger in the government tor is not illegal for the reason that A blind man in the industrial de printing office, carried on the clerical the employee has not yet qualified partment of an institute for the roll. In re Ellett, Op. Sol. Dept. Labor by securing a proper license as an blind receiving for his services, 112. (18) An instrument man in a elevator operator. Pettee V. Noyes, board, lodging, clothing, and five surveying party, character of work (Minn.) 157 NW 995. shillings per month in money. Mac- determines status. In

re Sanders, [c] Partner.-A partner working gillivray v. Northern Counties Inst. Op. Sol. Dept. Labor 114.

in a mine at manual labor and refor Blind, 48 Sc.

L. Rep. 811, 4 [g] Persons held not artisans or ceiving compensation therefor indeBWCC 429. (5) A professional foot-laborers under federal act:-(1) A pendent of his share as a partner is ball player may be "workman.' clerk engaged in office work.

In re not entitled to compensation. Ellis Walker V. Crystal Palace Football Alcee, Op. Sol. Dept. Labor 61. (2) v. Ellis, [1905] 1 K. B. 324. Club, (1910) 1 K. B. 87. 3 BWCC 53, A draftsman whose duties resemble [d] Under the British National AnnCas19130 25 and note. (6) A those of a clerk or artist.

In re Insurance Act of 1911-(1) Pupil law writer or scrivener. McKrill V.

Reeves, Op. Sol. Dept, Labor 73. (3) teachers and monitors in national Howard, 2 BWCC 460.

A foreman or superintendent who di- schools in Ireland are held em[c] Persons held not employees. rects the work of others and whose ployees. Re Employment of Mon-(1) A lecturer explaining airship work is mental and administrative | itors, etc., 6 BWCC N136. (2) at

exhibition. Waites V. Franco- or executive. In re Little, Op. Sol. Curates or assistant curates in the British Exhibition, 2 BWCC 199. Dept. Labor 78. (4) A concrete in. I church of England are not persons (2) An expert

chemist is not а spector engaged in inspecting and employed under a contract of serv"workman." Bagnall v. Levinstein, directing the work of others.

In re ice. In re Employment of Church [1907] 1 K. B. 531, 9 WCC 100. (3) Cunningham, Op. Sol. Dept. Labor of England Curates, [1912) 2 Ch. A manager of a colliery is not a

81.

(5) A telegrapher and shipping 563, 6 BWCC N3. (3) There is no "workman.' Simpson v. "Ebbw Vale clerk engaged in work of a clerical contract of service between poor law Steel, etc., Co., [1905] 1 K. B. 453, nature. In re Whiteman, Op. Sol. guardians and their officers under 7 WCC 101. (4) A rate collector. Dept. Labor 84. (6) A master or the Irish Poor Relief Act. Re EmLennon v., Wexford County Council, pilot of a steamer used in river and ployment of Poor Law Officers, 6 [1913] 48 I. L. T. 40.

harbor work. In re Jones, Op. Sol. BWCC N128. (4) There is no con[d] Members of the employer's Dept. Labor 86. (7) A transit man. tract of service in the case of resifamily dwelling in his house are ex- In re Grant, Op. Sol. Dept. Labor 94. dent physicians and resident surcluded by the English act. Marks (8) A surveyor. In re Sheppard, Op. geons, nonresident physicians, nonv. Carne, (1909) 2 K. B. 516, 2 BWCC Sol. Dept. Labor 98. (9) An assist- resident house surgeons and clinical 186; McDougall V. McDougall, 4 ant veterinarian, In re Brown, Op. assistants, and the supervisors of BWCC 373.

Sol. Dept. Labor 102. (10) A labora- the administration of anæsthetics in [e] A seaman (1) to be within tory assistant. In re Ransom, Op. the Royal Infirmary of Edinburgh. the English act of 1906 must be em- Sol. Dept. Labor 103. (11) A dock Scottish Ins. Comrs.. v. Royal Inployed on a registered British ves- master. In re Trahey, Op. Sol. Dept. firmary, 6 BWCC N120. (5) Lithosel. Mortimer v. Wisker, [1914] 3 Labor 105. (12) An inspector whose graphic artists and engravers enK. B. 699, 7 BWCC 494; Panagotis duties involve no manual labor. In gaged in the correction or the imv. Steamship Pontiac, (1912) 1 K. B. re Shetler, Op. Sol. Dept. Labor 108. provement of half-tone engraved 74, 5 BWCC 117. (2) Seamen were (13) A ship's draftsman. In re Rip-plates are not engaged in manual not included in the English act of ley, Op. Sol. Dept. Labor 110. (14) labor. Re Lithographic Artists, 6 1897. Mack v. Williams, 7 WCC 96; А matron of an Indian school. In BWCC N44. (6)A dairyman's foreWilliams V. Mack, 6 WCC 113. Con- re Humphreys, Op. Sol. Dept. Labor man and a tailor's cutter are not emtra Griffin v. Houlder Line, [1904] 1 111. (15) A cement tester and chem- | ployed in manual labor. Re Dairy

[ocr errors]

a

45

tional,44

42

38.

it may be either express or implied,35

or even void

be considered,43 as must extras, although condiable,36 and the employee must have begun on such

or allowances for food and clothing. employment.37 A contract which is illegal as in Joint adventurer. One who is a coadventurer violation of statute will not suffice.38 The rela- rather than an employee is not entitled to compention originally established presumptively continues sation.46 On this principle the English act exfor a reasonable time or until changed by express pressly excludes such members of the crew of a or implied agreement of the parties.39 Where the fishing vessel as are remunerated by shares in the facts are conceded, the question of the existence of profits or gross earnings of the working of such the relationship of employer and employee is one vessel.47 of law;to otherwise it is a question of fact, or of Employment secured by false representations.48 mixed law and fact.41

Although the employee secured his employment Earnings. By some of the acts, employees earn- through false representations in writing amounting ing in excess of a fixed amount are excluded.“ to a misdemeanor, he is entitled to compensation.* In determining the amount of the employee's earn- [0 39] B. State or Municipal Employees. Where ings, deductions to which he may be subject must the city o or the state is the employer, the relation man's Foreman, 6 BWCC N7. (7), of employees. Such is not the law. Colquhoun v. Woolfe, (1912) S. C. Ministers of the united methodist | Boody v. K. & C. Mfg. Co., 77 N. H. 1190, 49 Sc. L. Rep. 911; Newstead church and ministers, under proba- 208, 90 A 859, LRA1916 A 10, AnnCas v. Labrador, [1915] W. N. 360; Costion, of the Wesleyan methodist 1914D 1280. Wheeler v. Contoo- tello v. Kelsall, 6 BWCC 480 (app church are not employed under a cook Mills Corp., 77 N. H. 551, 552, dism 5 BWCC 667]; Whelan v. Great contract of seryice. Re Employment 553, 94 A 265.

Northern Steam Fishing Co., 2 BWCC of Ministers of United Methodist Employee on way to and from 235; Jamieson v. Clark, 2 BWCC 228; Church, 6 BWCC Ni. work see infra § 75.

Aberdeen Steam Trawling, etc., Co. [e] Manitoba.-Under the act of

Kemp v. Lewis, [1914] 3 K. B. V. Gill, 1 BWCC 274. 1902, workman must be engaged in 543, 7 BWCC 422.

48. Misrepresentations of age see manual labor. Hewitt v. Hudson's 39. Pettee v. Noyes. (Minn.) 157 infra $ 40. Bay Co., 20 Man. 126, 15 WestLR NW 995 (holding the employment of a 49. Kenny v. Union R. Co., 166 372 (holding sales clerk not a work- minor as a student elevator operator, App. Div. 497, 501, 152

NYS 117 man).

to work under the direction of a (where the court said: “The false 35, Sibley v. State, 89 Conn. 682, regular operator, not terminated by representations in no way related or 93 A 161, LRA1916C 1087.

the fact that he operated the elevator corttributed to the cause of death. [a] Evidence held to show con- in the absence of his instructor). The plain purpose of the statute was tract.-Gove's Case, 223 Mass. 187, 40. Kenny v. Union R, Co., 166

to provide compensation to an em111 NE 702 (contract by a father App. Div. 497, 152 NYS 117.

ployee for an accidental personal in. for the employment of himself and 41. Tuttle v. Embury-Martin Lum-jury and to the family of an emhis son); Spooner v. Detroit Satur- ber Co., (Mich.), 158 NW 875; Simployee who has suffered death as the day Night Co., 187 Mich. 125, 153 mons v. Heath Laundry Co., (1910 ]

result of such injury sustained by NW 657, LRA1916A 17.

1 K. B. 543, 3 BWCC 200; Wilmer[b]

the employee arising out of and in Evidence held not to show son v. Lynn, etc., SS. Co., 6 BWCC

the course of such employment 'withcontract.-Hillestad v. State Indus- 542.

out regard to fault as a cause of trial Ins. Commn., 80 Wash. 426, 141 42. See statutory provisions; and such injury, with the two specified P 913, AnnCas1916B 789 (employ- Reynolds v. Canadian Light, etc., CO.: exceptions of 'where the injury, is ment of son by father).

48 Que. Super. 500, 25 DomLR 237; occasioned by the willful intention 36. Kenny v. Union R. Co., 166 Foucher v. Morache, 46 Que. Super.

of the injured employee to bring App. Div. 497, 500, 152 NYS 117. 498; Couture v. Grand Trunk R. Co., | about the injury or death of him"While the relation of employer and 16 Que. Pr. 221.

self or another, or where the injury employee as defined by the statute 43. Williams V. Steamship Mari

results solely from the intoxication must have existed at the time de- time, [1915] 2 K. B. 137, 8 BWCC of the injured employee while on ceased sustained the injury, it mat- 267.

duty.' ters not whether the employment was

(See $ 10.) work-A

Concededly the [a] Suspension from

injury

wholly accidental and under a contract concededly valid as workman who is paid by the hour

neither exception applies"). to both parties, or under a contract for his work, but who is laid off

"The Workmen's Compensation voidable at the election of the em- temporarily through no fault of his,

Law is not to be read into the conployer, or whether the liability of and who is afterward recalled and the employer for wages

tract of employment as forming a was fixed, resumes his work, is entitled to estideterminable under quantum mate

part of it and as dependent for its the amount he would have

enforcement upon the validity of the meruit." Kenny V. Union R. Co., earned had he not been laid off and

contract of employment. to add it to the amount actually re

Although supra,

making the false statements con37. Susznik v. Alger Logging Co.,ceived in order to show that the 76 Or. 189, 147 P 922; Hillestad V.

stituted a misdemeanor, they did not workmen's compensation act does not

render the contract of employment State Industrial Ins. Commn., 80 apply and that he is entitled to bring

most void, but at

voidable at the Wash. 426, 141 P 913, AnnCas1916B

under
his action
the common law.

election of the employer, which it at 789; Perry v. Anglo-American Deco- Reynolds v, Canadian Light, etc., Co.,

no time saw fit to exercise." Kenny rating Co., 3 BWCC 310. 48 Que. Super. 500, 25 DomLR 237.

v. Union R. Co., supra. [a] Changing work.-"The plain- 44. Skailes V. Blue Anchor Line, tiff was at k by the day in [1911] 1 K. B. 360, 4 BWCC 16.

50. Blynn v. Pontiac, 185 Mich. 35, upstairs room of the defendant's 45.

151 NW 681; Hornburg v. Morris, 163

Dothie v. Macandrew, (1908) stocking mill. The work ran short,

Wis, 31, 157 NW 556. 1 K. B. 803, 1 BWCC 308.

See Finlay v.

Union, 7
Tullamore

973 and the overseer told her that if she

Ellis v. Ellis, [1905] 1 K. B. 46.

BWCC wanted finish to out

(where the workman was held an the day she 324, 7 WCC 97; Beck v. Hill, 8 BWCC could take her chair and go down- 592; Bobbey v. Crosbie, 8 BWCC 236; employee of the municipal guardians stairs, where there was piece-work | Kelly V. Miss Evans, 6 BWCC 916:

of the poor). to be done. The stairs were un- Smith Horlock, 6 BWCC 638 [a] For example, particular statrailed on one side for several steps (where a contract of service

utes have been held not to apply to: from the bottom, the treads

shown); Cole v. Shrubsall, 5 BWCC (1) Firemen regarded as public offibadly worn, and the stairs were in- 337; Hoare v. Barge Cecil Rhodes, 5 cers. Devney's Case, 223 Mass. 270, cumbered by large bundles of stock- BWCC 49; Hughes v. Postlethwaite,

111 NE 788. (2) Policemen who are ings which had been thrown down 4 BWCC 105; Carswell v. Sharpe, 3 appointive officers. Blynn v. Pontiac, The plaintiff | BWCC 552.

185 from the upper floor.

NW
Mich. 35, 151

681. attempted to pick her way down the [a] A part owner of a vessel may 51. Sibley V. State, 89 Conn. 682, stairs while carrying her chair, and be employed as master and may be

93 A 161, LRA1916C 1087; Agler v. while so doing slipped and fell from regarded as a workman. Carswell v. Michigan Agricultural College, 181 the worn and unrailed treads, receiv- Sharpe, 3 BWCC 552.

Mich. 559, 148 NW 341 (holding that ing the injuries complained of.

[b] Evidence held not to show the state board of agriculture or the The claim that because she had com- joint adventure. Jones V. The Alice regents of the university are not pleted one kind of work upstairs and and Eliza, 3 BWCC 495.

within the workmen's compensation was going downstairs to begin work 47. Workmen's Compensation Act act [Pub. Acts (Ex. Sess. 1912) No. for which she was paid in a differ- (1906) $7 (2). See for construction 10] by virtue of pt 1 85 thereof, ent way, therefore she was not, of this section Costello V.: Ship declaring that the state shall be subwhile in

transit, the defendant's Pigeon, [1913] A. C. 407: Burman v. ject to the provisions of the act, servant, does not demand extended Zodiac Steam Fishing Co., (1914) 3 and that an employee of the Michiconsideration. If the claim were K. B. 1039, 7 BWCC 767; Admiral gan agricultural college under the well founded, employers would be Fishing Co. V. Robinson, [1910) 1 control of the state board of agrireleased from all liability under the

K. B. 540, 3 BWCC 247; Stephenson culture is not an employee of the act for the condition of the ways V. Rossall Steam Fishing Co., 112 state. and cannot recover compenprovided for the ingress and egress L. T. Rep. N. S. 891, 8 BWCC 209; sation under the act, where the col

was

or

an

[ocr errors]

was

were

52

a

or

v.

V.

ex

of master and servant must exist. As to whether the illegality of the employment and the injury;65 particular employees are included depends pecu- but it does not apply to a minor who is at the time liarly on the wording of the act under which com- of entering the employer's service legally authorpensation is sought.

ized to engage in the occupation for which he con[ 40). O. Children or Minors. Where a child tracted to work, but is not permitted by law to do has not attained the age at which he may lawfully the particular work in which he is injured.58 In be employed in the occupation in which he is in- any event, to permit a minor employee to be rejured, he cannot be regarded as an employee within garded as within the meaning of a compensation the provisions of a compensation act.53

The same

act, there must be proof of a contractual relation ;57 rule applies where the minor is working without but it has been held immaterial that the employee having obtained a permit which, if obtained, would misrepresented his age, or that the contract is have rendered his employment lawful,54

54 and al

voidable by the minor. 69 though there is no causative connection between lege has not voluntarily come under v. St. Louis County Dist. Ct., (Minn.) | bring the child within the operation the law). 158 NW 791.

of the act when his age is such that (a) Á sheriff is not an "employee" (c) Laborers, workmen, and me- he cannot be allowed or permitted to of the state, within the workmen's chanics."By St. 1913, c. 807, cities work in the employment. Hetzel v. compensation act (Pub. Acts [1913] and towns upon acceptance of the Wasson Piston Ring Co., (N. J.) 98 c 138) pt B § 43, defining "employer" act may pay compensation to such A 306. and "employee" as follows: "Em-laborers, workmen and mechanics' 54. Stetz v. Mayer Boot, etc., Co., ployee" shall mean any person who employed by them as receive inju- 163 Wis. 151, 156 NW 971. See Hillehas entered into or works under any ries arising out of and in the course stad v. Industrial Ins. Commn., 80 contract of service or apprenticeship of their employment; or, in case of Wash. 426, 142 P 913, AnnCas1916B with an employer. "Employer" shall death resulting from such injury 789 (holding that, under Remington mean any natural person, corpora- may pay compensation

to & B. Code $ 6570, providing that no tion, firm, partnership, or joint stock the persons entitled thereto' as pro- child under fourteen years shall be association, the state, and any public vided in St. 1911, c. 751, and acts hired out to labor in any factory, corporation within the state using in amendment thereof. Ít appears mill, etc., one who employs a child the services of another for pay; it from the record that the city ac- under that age must be prepared in includes also the legal representa- cepted the statute, and the question all cases to show that he is employed tive of any such employer. Sibley is whether the deceased employee lawfully, and in the absence of such V. State, 89 Conn. 682, 93 A 161, upon whom the complainant, his showing, as that the superior judge LRA1916C 1087.

mother, was partially dependent, was had given the child permission to 52. See Udey v. Winfield, (Kan.) laborer, workman mechanic work, the law will presume that the 155 P 43 (holding that clerical em- within the meaning of the statute. employment violated the provision). ployees in the office of the city clerk At the time of his injury and death 55. Hillestad Industrial Ins. are not employees of the city in con- he was a hoseman and a member of Commn., 80 Wash. 426, 142 P 913, ducting a light and water plant, as a fire company stationed at one of AnnCas1916B 789. contemplated by $ 6 of the work- the engine houses of the city where 56. Foth v. Macomber, etc., Rope men's compensation act (L. (1911) he was housed when on duty, per- Co., 161 Wis. 549, 154 NW 369. c218]); State v. St. Louis County forming the services required by his 57. Hillestad Industrial Ins. Dist. Ct., (Minn.) 158 NW 790; Su-| position.

The framers of the Commn., 80 Wash. 426, 141 P 913, perior v. Industrial Commn., 160 Wis. statute undoubtedly intended that | AnnCas1916B 789. 541, 152 NW 151 (holding that St. the words “laborers, workmen and [a] Employment by parent.--"If a [1913] 925-171a, which was first en- mechanics' should be taken in their father is going to insist that the acted by L. (1907) c 493, and which ordinary lexical sense which child is a workman, he should be provides that the park commissioners cludes the trained and disciplined bound by the same rule that the law of all cities shall have jurisdiction force comprising the defendant's fire puts upon one who is of full age, and control for park purposes over department. The provisions of sec- and in the absence of clear proof of the part of the public streets lying tion 5 of the statute that any per- a contractual relation, we disbetween the curb and the sidewalk, son entitled to receive from the Com- posed to hold that a father who puts applies to a city which has not monwealth or from a county, city, his child to work at a hazardous emadopted the general city charter law,

district the compensation ployment assumes the risk attendnotwithstanding the incorporation of provided.

who is also en- ing such employment." Hillestad V. the statute into that chapter of the titled to a pension by reason of the Industrial Ins. Commn., 80 Wash. 426, statutes, and the provision of St. same injury shall elect whether he 430, 141 P 913, AnnCas1916B 789. (1913) 925-2, that no city already in- will receive such compensation [b] Apprenticeship.The relation corporated shall be affected by the such pension and shall not receive of master and servant has been held provisions of that chapter unless it both' has (have) not been forgotten. to exist when a minor was injured has adopted or shall. adopt it, and But this section is to be read with while serving an apprenticeship in such city is therefore liable under section ?, which expressly says that learning to operate an electric pasthe workmen's compensation law for the provisions of St. 1911, c. 751, and senger elevator. Pettee v. Noyes, the death of a park caretaker, re- acts in amendment thereof 'shall not (Minn.) 157 NW 995. sulting from injuries received while apply to any person other than la- 58. Havey v. Erie R. Co., 87 N. J. he

mowing the grass the borers, workmen and mechanics em- L. 444, 445, 95 A 124 [rev on other space between the curb and the side- | ployed by counties, cities, towns or grounds 88' N. J. L. 684, 96 A 995] walk).

districts having the power of taxa- (where the court said: "One of the [a] Policemen -(1) A village tion.' We are accordingly, of opinion reasons assigned for reversal marshal in doing police duty is in that the ruling asked for by the city,

is that the contract of emrespect thereto a policeman within that the decedent was not a work-ployment entered into between the the meaning of an act providing that man, laborer or mechanic at the time prosecutor and the plaintiff's intespolicemen shall be deemed employees. of his injury and death should have tate was made by misrepresentation Kiel v. State Industrial Commn., 163 been given." Devney's Case, 223 and fraud, in that the plaintiff's deWis. 441, 158 NW 68; West Salem Mass. 270, 111 NE 788, 789.

cedent misrepresented his name and V. State Industrial Commn., 162 Wis. 53. Hetzel v. Wasson Piston Ring age to the prosecutor at the time he 57, 155 NW 929. (2) This is true, Co., (N. J.) 98 A 306; Hillestad v. applied for employment and obtained although he was enforcing a state Industrial Ins. Commn., 80 Wash. 426, | it. We think that the misrepresenlaw when injured. Kiel v. State In- 142 P 913, AnnCas1916B 789; Stetz v. tation as to name and age, in the dustrial Commn., supra; West Salem Mayer Boot, etc., Co., 163 Wis. 151, absence of any proof, that the prosev. State Industrial Commn., supra. 153, 156 NW 971 (construing the pro- cutor was induced to enter into the (3) When the statute includes "every vision of the Wisconsin act includ- contract upon such misrepresentaperson in the service of a

tion, did not constitute such a fraud city

under any appointment "minors who are legally permitted that it will operate to relieve the or contract for hire, express or im- to work under the laws of the prosecutor from the statutory obliplied, oral or written; but shall not state'').

gation to make compensation in a include any official of any

[a] where employer is parent.- case arising under the statute. Morecity

who shall have been "The burden of meeting the conse- over, it does not appear that there elected or appointed for a regular quences of the injury to workmen is was any causal connection between term of office," a policeman holding put upon the industry, but the state the misrepresentation and the conoffice during good behavior killed in has not assumed a statutory duty to tract"). the discharge of his duty is included. reimburse the father for the loss of Misrepresentation of age 48 misState v. St. Louis County Dist. Ct., the services of the son who has been conduct see infra § 78. (Minn.) 158 NW 790, 791. (4). A j employed by him in violation of a 59. Hoey v Superior Laundry Co., policeman is not within the English positive and equally meritorious stat- 85 N. J. L. 119, 88 A 823 (holding act 1906. Sudell Blackburn

ute."

Hillestad v. Industrial Ins. that, in an action by an employee Corp., 3 BWCC 227.

Commn., 80 Wash. 426, 434, 141 P to recover compensation for injuries [b] Firemen.- An assistant chief | 913. AnnCas1916B 789.

received while in the course of emof a city fire department has been [b] A contract by the parent on ployment, defendant cannot set up held within the Minnesota act. State behalf of the child is unavailing to the infancy of plaintiff as a bar to

are

town

or

or

was

on

of

as

or

a

of

as

[$ 41] D. Employees of Contractor or Subcon- bility on the part of all employers,” and that the tractor. The liability of the employer or the in- courts must be resorted to.61 surer under the provisions of some of the statutes [ Ø 42]. E. Independent Contractors. One who extends to the employees of a contractor or a sub- is not an employee, but an independent contractor contractor doing work for the employer. 60 But it for the work, is not within the scope of a compenhas been held that such a provision cannot be en- sation act.62 Where the right to control the manner forced by an industrial commission under a con- of doing work is reserved, the relation ordinarily stitutional provision giving it power over “a lia- is held to be that of employer and employee63 in the 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) able, under the California Workmen's can take advantage of, and a contract It is necessary that the work be un- Compensation Law (St. (1913) p 279), voidable by an infant binds a per- dertaken for the purpose of the prin- for indemnity for injuries suffered son of full age).

cipal's trade or business. Dittmar v. by an employee of an independent 60. See statutory provisions; and Ship V 593, (1909) 1 K. B. 389, 2 BW contractor, injured while superinIn re Comerford, (Mass.) 113 NE 460; CC 178 (coal merchants and a lighter- tending the installation of apparatus King's case, 220 Mass. 290, 107 NE man entering into a contract for nav- for its assured). 959; Sundine's Case, 218 Mass. 1, 105 igation to a branch house of a lighter 62. Western Indemn. Co. v. PillsNE 433, LRA1916A 318; Ringwood v. they had purchased are within the bury, (Cal.) 159 P 721; Perham v. Kerr, 7 BWCC 1056; Ringwood v. act); Mulrooney v. Todd, [1909] 1 American Roofing Co., (Mich.) 159 Grand Trunk Pac. R. Co., 7 Alta. K. B. 165, 2 BWCC 191 (municipal | NW 140; Vamplew v. Parkgate Iron, 226, 17 Dom LR 202 [allowing app 28 corporation contracting for clearing etc., Co., (1903) 1 B. 851, 5 WCC West LR 263, 6 West Wkly 942]: Hal- away an old building is within the

114; Barnes v. Evans, 7 BWCC 24; lett v. Abraham, 17 DomLR 854, 6 act); Brine v. May, 6 BWCC 134 Byrne Baltinglass Rural Dist. OntWN 355.

(agent contracting to have a house Council, 5_BWCC 566; Simmons v. [a] For example, (1) under Mass. repaired is not within the act);

Faulds, 3 WCC 169, 17 T. L. R. 352; St. (1911) c 751 pt'3 § 17, providing Hayes v. Thompson, 6 BWCC 130

Hayden v. Dick, 40 Sc. L. Rep. 95. that, if a subscriber contracts with an (barge owner contracting for the

See also cases in following notes. independent contractor to do the sub- overhauling and the cleaning of a scriber's work, and the association, barge is not within the act); Luck: pensation act (St. [1913] p 284 § 14),

[a] Illustrations.-Under the comif the work were executed by the em- will v. Auchen Steam Shipping Co., 6 providing that the term "employé," ployees immediately employed by the BWCC 51 (shipowner contracting to

used in $$12-35, shall mean subscriber, would be liable for com- have a boiler scaled is not within the

every person in the service of an pensation to the employees, it shall act); Skates v. Jones, 3 BWCC 460 employer, as defined by $ 13, under pay such employees any compensa- (skating rink proprietors contracting any appointment of contract of hire tion which would be payable if the to have a building removed for their

apprenticeship, “contract independent contractor were a sub

purposes are not within the act): hire" means a contract for personal scriber, pt5 § 2, defining “associa- | Spiers v. Elderslie Ss. Co., 2 BWCC services, Western Indemn. Co. v. tion" used therein, as meaning 205 (shipowner contracting for boiler Pillsbury, (Cal.) 159 P 721. the Massachusetts Employees' Insur- scaling is not within the act): Waites

63. Thompson v. Twiss, (Conn.) 97 ance Association, and St. (1912) C v. Franco-British Exhibition, 2 BWCC

A 328: Tuttle V. Embury- Martin 571 $ 17, providing that any liability 199 (exhibition company letting a insurance company authorized to do side show is not within the act);

Lumber Co., (Mich.) 158 NW 875;

State v. St. Louis County Dist. Ct., business within the commonwealth Zugg v. Cunningham, 1 BWCC 257

128 Minn. 43, 150 NW 211; Powley shall have the same right as the (chemical manufacturers employing

v. Vivian, 169 App. Div. 170, 154 NYS association to insure the liability to a rigger to tar structures used in

V.

426; Rheinwald Builders' Brick,
pay the compensation, and that the the manufacture of chemicals is
holder of its policy shall be regarded not within

etc., Co., 168 App. Div. 425, 153 NYS
the
act). (5)

The as a subscriber, and that it shall be accident

598; Paterson v. Lockhart, 42 Sc. L. must also occur on, in,

Rep. 24. subject to the provisions of the act, a or about, premises on which company which insured merchant principal has undertaken

(a) to

"An independent contractor is tailors against liability was liable to ecute the work

defined as one who exercises an inde

or which an employee of an independent con- otherwise under his control or man

pendent employment and contracts to tractor making clothing for such agement. Andrews V.

Andrews,

do a piece of work according to his merchant tailors in their workroom. [1908) 2 K. B. 567, 1 BWCC 264. (6)

own method and without being subalthough the independent contractor it cannot be said that "everything ject to the control of his employer, carried no insurance. Sundine's Case, which is reasonably necessary to be

save as to the results of his work. 218 Mass. 1, 105 NE 433, LRA1916A done for the purpose of a trade or

(Alexander V. R. A. Sherman Sons 318. (2) Where claimant's employer business is work undertaker by the

The

Co., 86 Conn. 292, 85 A 514.) was requested by contractors to send principal." Hockley v. West London

true test of a contractor would seem teamster to load and to carry Timber, etc., Co., supra.

to be that he renders the service in

(7) It has concrete sills, wheelbarrows,

the course of an independent occupaetc.. been held that there must be some from a storehouse to premises where obligation on the part of the princi

tion, representing the will of his emthey were to be used, and claimant, pal to do the work. Walsh v. Hayes, ployer only as to the result of his a teamster, was so sent and was in- 2 BWCC 202. (8) The employee

work and not as to the means by jured in such work, he comes within cannot obtain an award against both

which it is accomplished. The one the statute (St. (1911) c 751 pt 3 the principal and the contractor. | indispensable element to his charac$ 17, if the work was a part of the Meier v. Dublin Corp., 6 BWCC 441.

ter as an independent contractor is contractor's business, and not merely (9) For construction of the corre

that he must have contracted to do ancillary and incidental thereto. I sponding provision of the act of 1897 a specified work and have the right re Comerford, (Mass.) 113 NE 460. see Cooper v. Wright, [1902] A. C.

to control the mode and manner of [b] The English act. (1) Pro- 302, 4 WCC 75; Bush v. Hawes, [1902) doing it. (S. & R. Neg (6th ed.] vides that "where any person (in 1 K. B. 216, 4 WCC 33; Knight v.

164; Andrews v. Boedecker, 17 III, A. this section referred to as the prin- Cubitt, [1902] 1 K. B. 31, 4 WCC 42;

213; Hexamer v. Webb, 101 N. Y. 377. cipal), in the course of or for the Wrigley V. Bayley, (1901] 1 Q. B.

385, 4 NE 755, 54 AMR 703; Cunningpurposes of his trade or business, 780, 3 WCC 61; Hardy v Moss, 6

ham v. International R. Co., 51 Tex. contracts with any other person (in WCC 68; Wagstaff v. Perks, 5 WCC

503, 32 AmR 632.) An independent this section referred to as the con- 110, 87 L. T. Rep. N. S. 110; Hansor

contractor is not in any legal sense tractor) for the execution by or un- V. Great Cent. R. Co., 3 WCC 152; a servant of his employer, but is one der the contractor of the whole or Knight v. Cubitt, 3 WCC 71; Cooper | exercising an independent employany part of any work undertaken by v. Davenport-Winstanley, 2 WCC 44. ment under a contract to do certain the principal, the principal shall be 61. Sturdivant v. Pillsbury, (Cal.) work by his own methods without liable to pay to any workman em- 158 P 222; Carstens v. Pillsbury, subjection to the control of his employed in the execution of the work (Cal.) 158 P 218. To sane effect | ployer except as to the product or any compensation under this Act Western Indemn. Co. v. Pillsbury,

result of the work. (Indiana Iron which he would have been liable to (Cal.) 159 P 721; Donlon v. Industrial Co. v. Cray, 19 Ind. A. 565, 48 NE pay if that workman had been imme- Acc. Commn., (Cal.) 159 P 715 (hold

803.
To

same effect Parrott V. diately employed by him." Work- ing that, where one was killed while Chicago Great Western R. Co., 127 men's Compensation Act (1906) c 58 cutting firewood at a certain price Iowa 419, 103 NW 352; Williams v.

4 subd 1. (2) Of this section per cord under employment by the National Cash Register Co., 157 Ky. Cozens-Hardy, M. R., has said: "I

agent of a contractor with the land- 836, 164 SW 112; Wood Mast. & Serv. am disposed to think that that is owner to have the wood cut from $ 424; Thomp. Neg. [2d ed.] $ 622.)." one of the most difficult, if not the trees on the land, the deceased fur- Powley v. Vivian, 169 App. Div. 170, most difficult Section in this very nishing his own working tools, and

174, 154 NYS 426. difficult Act." Hockley v. West Lon- determining his own hours of labor, [b] Control must be complete.don Timber, etc., Co., 7 BWCC 652, and his compensation depending on

"It

is true that many authorities • 669, 670. (3) "The section contem- | inspections and measurement of his specify 'control' of the person perplates two persons, namely, the ac- work, the relation of master and serv- forming work as the means of diftual employer of the workman, called ant did not exist); Western Indemn. ferentiating service from independent the contractor, and a hypothetical Co. v. State Industrial Acc. Commn., employment. The test of 'control,' employer of the workman, called the (Cal.) 158 P1033 (holding that an however, means 'complete control'."

the exare

a

[ocr errors][ocr errors]
« AnteriorContinuar »