66

[c] "The method of payment adopted by these parties, by the day rather than by the contract, is characteristic of the relation of an employee to an employer, and not of an independent contractor with his contractee." Thompson v. Twiss, (Conn.) 97 A 328, 331.

69

64. Tuttle v. Embury-Martin Lumber Co., (Mich.) 158 NW 875; State V. St. Louis County Dist. Ct., 128 Minn. 43, 150 NW 211. See generally Master and Servant [26 Cyc 1546].

[d] Persons held employees.-(1) "Piece maker" in lumber camp, paid by the piece for timber cut and prepared, boarded at an agreed price, required to cut the timber according to directions, and subject to discharge at any time. State v. St. Louis County Dist. Ct., 128 Minn. 43, 150 NW 211. (2) Painter by trade, who had occasionally done work for the employer, who was paid a lump sum for a job of painting on the employer's plant, done under a contract in writing containing undertakings as to the quality and materials, and who himself furnished the tools and materials and did the work without helpers. Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598. (3) "Plaintiff, engaged by defendant to do certain work in the development of land, and furnished by defendant with the explosives and most of the tools required, who kept a team of horses and worked sometimes with his team and at other times without it, who on part of the work was given the privilege of getting such help as he needed or taking those that defendant's brother would furnish, and who, in fact, hired the men he used on the work, and at the end of the week gave defendant the amount of the pay roll and received the amount of wages to be turned over to the men, who was himself paid by the day at irregular times, receiving more when his team was used, and who received nothing in addition to his own work and no profit on the men's wages, whose completion of the work was indefinite because defendant was constantly adding to it, and who employed on a part of the work one who was paid directly by defendant, was an 'employé,' and not an 'independent contractor.'" Thompson v. Twiss, (Conn.) 97 A 328, 329. Person hauling logs at fixed rate per thousand feet, furnishing and caring for his own horses, and living at home, but whose work was limited by the right of the employer to terminate it at any time and was for no definite period or amount, the loading and the unloading of logs being under the control of the company both as to time and place. Tuttle v. Embury-Martin Lumber Co., (Mich.) 158 NW 875. (5) Manager of dairy farm. Roper v. Hussey-Freke, [1915] 3 K. B. 222, 8 BWCC 604. (6) Person hired to break stones at fixed price per ton. Ryan v. Tipperary North Riding County Council, 8 BW CC 415; Boyd v. Doharty, 2 BWCC 257. (7) Miner digging coal at fixed price per ton and doing his own timbering. Cangreme v. Alberta Coal Min. Co., (Alta.) 7 BWCC 1020. (8) Quarryman with shot firer and gang of men working under him, paid by the piece. Jones v. Penwyllt Dinas Silica Brick Co., 6 BWCC 491. Το same effect, Evans v. Penwyllt Dinas Silica Brick Co., 4 WCC 101, 182 L.

(4)

the

[e] Persons held independent contractors.-(1) Dredge owner hiring out with dredge. Powley v. Vivian, 169 App. Div. 170, 154 NYS 426. (2) One who furnished teams and drivers to a contractor, and who received a certain sum per day for the work of each team and driver, and who himself drove one of such teams, notwithstanding control was exercised by the contractor in directing the drivers as to the materials to be hauled. Western Indemn. Co. v. Pillsbury, (Cal.) 159 P 721. (3) Miner agreeing to begin work at a certain place, blast in a certain direction, and load rock at fixed rate per cubic yard. Reid v. Leitch Collieries, (Alta.) 7 BWCC 1017. (4) Person agreeing to trap rabbits at a fixed price per pair. McConnell V. Galbraith, 7 BWCC 968. (5) Person agreeing to supply yawl and crew for use at pilot station. Walsh v. Waterford Harbour

Comrs., 7 BWCC 960. (6) Person engaging to carry baggage of theatrical company. Huscroft v. Bennett, 7 BWCC 41. (7) Person agreeing to cut down certain trees at so much per tree. Curtis v. Plumptre, 6 BW CC 87. (8) Person carting stones but under no obligation to do the work at any particular time. Ryan v. Tipperary County Council, 5 BW (9) CC 578. Person furnishing horse for use in hauling logs at fixed price per day but with option as to working personally or sending some one in his place. Chisholm v. Walker, 2 BWCC 261.

[f] Independent contractor acting as employee (1) Where the owner of a dredge leased it by contract whereby he became an independent contractor for the dredging operation, but his employer was obligated by its agreement to furnish supplies to the dredge, and such independent contractor was injured while operating a gasoline launch to bring such supplies to the dredge in the absence of a man furnished by the employer to run the launch, as to such incidental work the independent contractor was not such, but, an "employee," within the workmen's compensation law. Powley v. Vivian, 169 App. Div. 170, 154 NYS 426. (2) Where the firm of which claimant was a member contracted to attend to the glazing of a building, claimant's personal employment by the general contractor to oversee the un

[a] Common-law definition.-"It is suggested that, inasmuch as the statute enjoins upon the court liberal construction, we should ignore common law and other definitions, and should, in determining who are and who are not employees, regard only decisions under compensation acts.

This court has always endeavored to construe the Workmen's Compensation Act liberally and with a view to carrying out its benevolent purposes, but we cannot see why we should discard the wisdom and learning of the past in our efforts to decide what the Legislature intended by the language used. Especially should we avoid all temptation to stretch the law to cover individual cases where those demanding, compensation arouse our sympathy. This man to whom compensation was given was badly injured, but we should not for that reason shut our eyes to the fact that he was an independent contractor, and not an employee." Western Indemn. Co. V. Pillsbury, (Cal.) 159 P 721, 724. But see Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598 (where the court said that in determining whether the decedent was to be deemed an "independent contractor" or an employee, within the workmen's compensation law, decisions at common law, or under the employers' liability statutes, involving the question as to whom a master owes the duty of care and precaution arising out of the contractual relation of hiring, are not controlling, but only

those decisions based on that act, or acts based on the identical principle, are influential or controlling). 65.

See statutory provisions; and cases in following notes. 66. Thompson v. Twiss, (Conn.) 97 A 328; In re Gaynor, 217 Mass. 86, 104 NE 339, LRA1916A 363; Dyer v. James Black Masonry, etc., Co.. (Mich.) 158 NW 959.

67. Blood v. State Industrial Acc. Commn.. 30 Cal. A. 274, 275, 157 P 1140; Thompson v. Twiss, (Conn.) 97 A 328; In re Gaynor, 217 Mass. 86, 104 NE 329, LRA1916A 363.

68. Hill v. Begg, [1908] 2 K. B. 802, 1 BWCC 320; Cotter v. Johnson, 5 BWCC 568; Tombs v. Bomford, 5 BWCC 338; Blyth v. Sewell, 2 BWCC 476; Johnston v. Monasterevan Gen. Store Co., 2 BWCC 183; Smith V. Buxon, 84 L. J. K. B. 697; Bullock v. Graves, [1912] 47 L. J. 784; Bargewell v. Daniel, 98 L. T. Rep. N. S. 257. See also McCann v. McDonnell, [1913] 47 I. L. T. 229 (where claim of plasterer repairing houses belonging to publican was disallowed); Kelly v. Buchanan, [1913] 47 I. L. T. 228 (where claim of laborer engaged by shopkeeper to repair houses disconnected from the shop was disallowed).

[a] Trade or business is essential. Miles v. Dawe. 8 BWCC 225; Rennie v. Reid, 1 BWCC 324.

69. Maryland Casualty Co. V.

82

statute requires the notices of acceptance which are to be posted in the factory or other place of business of the employer to be copies of the notice filed with the commissioner of industrial statistics, no question can arise as to the reasonableness of a notice in the English language.91 Under some of the statutes the employer's notice of intention to accept the act must be approved by the board or commission intrusted with the general administration of the act.92 An acceptance filed after the passage of a compensation act but before its taking effect has been held valid.93 The action of the treasurer of an employer corporation in filing a notice of acceptance may be ratified by the acquiescence of the directors and their failure to disaffirm or repudiate it. In a collateral proceeding at least, where an employer is a corporation, the authority of an officer filing a statement of election need not be shown.95

94

Acceptance by receivers. Receivers under a general power to manage corporate property in the manner in which the corporation might have acted may elect either to accept or to reject a compensation act.98

Necessity in order to preserve common-law defenses see infra § 156.

81. Bernard v. Michigan United Tract. Co., (Mich.) 154 NW 565 (holding that the fact that the employee made statements or accepted compensation provided for will not bring the accident within the act). 82. Shevchenko v. Detroit United R. Co., (Mich.) 155 NW 423.

83. Krisman V. Johnston City, etc., Coal, etc., Co., 190 Ill. A. 612; Gorrell v. Battelle, 93 Kan. 370, 144 P 244; Mahowald v. Thompson-Starrett Co., (Minn.) 158 NW 913; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070].

84. Butte v. State Industrial Acc. Bd., (Mont.) 156 P 130 (holding that in view of the act of March 8, 1915, § 24a, declaring that the act should be liberally construed, and Rev. Codes §§ 7875, 7876, declaring that the office of construction is merely to give effect to the intent of the lawmakers, and that in case of inconsistency the latter intent will govern, public corporations as cities, must, the rule being that every word of a statute must be given some meaning, be deemed subject to the act without any election, § 3 (e) declaring that the scheme and plan of compensation provided should be compulsory and obligatory on both employer and employee in case of public corporations).

85. Bateman v. Carterville, etc., Coal Co., 188 Ill. A. 357. See Synkus v. Big Muddy Coal, etc., Co., 190 III. A. 602.

86. Bateman v. Carterville, etc., Coal Co., 188 III. A. 357.

87. See cases in following notes. [a] Scope of notice as to railway employees. A notice filed by a railway company, which states that it accepts the provisions of the workmen's compensation act (L. [1911] c 50; St. [1911] §§ 2394-1 to 2394-31), and that the nature of the employment of its men is office and shop work, is sufficient to include all employees, and not merely office and shop employees, of the railway company, if their inclusion in such an election was authorized by the statute. Minneapolis, etc., R. Co. v. State

we think the proof was short, and very unsatisfactory. However, the evidence, such as it was, was adbenefit thereof, and its instruction number 4, given, was on the theory that notice acquired by employees in such manner is sufficient to relieve the employer, and to excuse his failure to post notices as required by the statute. Actual notice obtained by an employee in any other way than that provided by the statute we think would relieve an employer, but notice given according to the statute is, by the terms thereof, constituted sufficient notice ").

[b] Evidence of election.-" We do not agree with plaintiffs that defend-mitted, and defendant was given the ant has not shown that it elected to come under the provisions of the Kansas Act. The statement required by section 44 of the Act to be filed with the Secretary of State is not required to be in any precise or technical form. It does not have to be evidenced with the same formality as a deed or other instrument which transfers property. And even if the authority of the officer which signed the statement to make and file the same was not affirmatively shown, it did not have to be, since it was proved and clearly shown that notices to that effect were posted in all parts of the defendant's plant long prior to the injury proving conclusively that the Company did elect to come under the Act and that the statement was filed by authority." Piatt v. Swift, 188 Mo. A. 584, 590, 176 SW 434.

88. Troth V. Millville Bottle Works, (N. J.) 98 A 435 [aff 86 N. J. L. 558, 91 A 1031, 1032] (holding that a notice posted around the works and given through the medium of the pay envelope was not in compliance with a statute providing that "in the employment of minors, section II shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor"); Daniels v. Charles Boldt Co., (W. Va.) 88 SE 613.

89. Daniels v. Charles Boldt Co., (W. Va.) 88 SE 613, 615 (where the court said: "The evidence on this plea seems ample to support the fact of payment by defendant of all premiums, dues and assessments so as to bring it under the provisions of the act, but the evidence shows, and it is conceded, that defendant had not posted typewritten or printed notices as required by said section 23, its excuse being that it had applied to the state authorities therefor, and had not, at the time of plaintiff's injuries. received the same. But the statute makes no provision for the furnishing of such notice by the state, and its failure to do so gives no excuse for noncompliance with the requirements of the statute").

90. Daniels v. Charles Boldt Co., (W. Va.) 88 SE 613, 615 (where the court said: "An effort was made to charge plaintiff with notice by proving deductions from his wages, and retention by defendant, out of his weekly pay envelopes, of the proportion of the premiums chargeable to employees under said act. But

91. De Pasquale v. Mason Mfg. Co., (R. I.) 97 A 816.

92. Bernard V. Michigan United Tract. Co., (Mich.) 154 NW 565.

93. Coakley V. Mason Mfg. Co., 37 R. I. 46, 48, 90 A, 1073.

"While the act was not in effect, in the strict sense of the word, it had a potential existence prior to October 1st. It had been passed by both houses of the General Assembly and had received the approval of the governor. Nothing further was required to bring it into effective existence except the lapse of time. The acceptance in the present case was filed on September 26, 1912. It remained with the commissioner of industrial statistics without any effort on the part of the defendant to withdraw it and we think that it must be presumed to have been filed by the defendant with the intention that it should take effect when the act went into effect on October 1, 1912." Coakley v. Mason Mfg. Co.,

supra.

94. De Pasquale v. Mason Mfg. Co., (R. I.) 97 A 816.

95. Piatt v. Swift, 188 Mo. A. 584, 176 SW 434 (so holding, where notices of such election were posted in all parts of the employer's plant long prior to an injury, especially where the question as to such election was raised by attorneys claiming to have a lien on the employee's cause of action).

96. Devine v. Delano, 272 Ill. 166, 186, 111 NE 742 (where the court said: "By the order appointing these receivers in the Missouri district court they were authorized to run, manage, maintain and operate said railroads and property wheresoever situated or found, whether in this State, judicial circuit or elsewhere, and to use, manage and conduct such business in such manner as in their judgment will produce the best results, and to this end exercise the authority and franchise of said railroad company and discharge all the

power

[a] Receivers under foreign appointment. "A court in a principal railroad receivership action has general power and authority over the entire railroad system, even though parts of it are not situated within the district in which the court sits, and this authority will be recognized in other jurisdictions, not only on the ground of comity between courts, but also as a rule of utility

and convenience, resting upon principles of sound public policy. (Dillon v. Oregon, etc., R. Co., 66 Fed. 622; Guarantee Trust, etc., Co. V. Philadelphia, etc., R. Co., 69 Conn. 709, 38 A 792, 38 LRA 804.) Without discussing in detail the various questions raised and discussed by counsel on both sides at great length on this subject, we conclude from the record that it is satisfactorily shown the Missouri receivers were authorized to accept or reject this Compensation Act within the southern district of Illinois." Devine v. Delano, 272 II. 166, 187, 111 NE 742. 97. See statutory provisions; and Dietz v. Big Muddy Coal, etc., Co., 263 111. 480, 105 NE 289; Krisman v. Johnston City, etc., Coal, etc., Co., 190 Ill. A. 612; Favro v. Superior Coal Co., 188 Ill. A. 203; Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249; Young v. Duncan, 218 Mass. 346, 106 NE 1; Johnson v. Nelson, 128 Minn. 158, 150 NW 620 (Wisconsin act); Harris v. Hobart Iron Co., 127 Minn. 399, 149 NW 662. See Grand Trunk R. Co. v. Knapp, 233 Fed. 950 (holding that in an action based on the Federal Employers' Liability Act, where there was no express agreement under which plaintiff voluntarily accepted and became bound by the provisions of the Michigan compensation act it could not be held that the mere fact that defendant paid plaintiff's hospital and doctor's bills during the first three weeks after the injury, as required by the compensation act, constituted an election by plaintiff after the injury to accept the act, and further, that the provision for automatic acceptance was not applicable, since the compensation act did not apply to an injury by negligence sustained in interstate commerce).

[a] When an employer rejects act, the employee has no right to elect, under the Illinois act of 1911. Bateman V. Carterville, etc., Coal Co., 188 Ill. A. 357; Favro v. Superior Coal Co.. 188 Ill. A. 203.

98. Daniels v. Charles Boldt Co., (W. Va.) 88 SE 613.

99. Green V. Appleton Woolen Mills, 162. Wis. 145, 155 NW 958.

[a] Illustration.- Where workmen's compensation act (L. [1911] c 50) § 1 (St. [1915] § 2394-8 subd 2) allowed employees thirty days in which to elect whether they would come under its provisions, and plaintiff was injured on the day following defendant's election to come under the act, it could not apply to him, his contract of employment having been made before the employer came under the act, and the thirty days within which he might elect not yet Green v. Appleton having expired. Woolen Mills, 162 Wis. 145, 155 NW 958. 1. Mass. Young v. Duncan, 218 346, 106 NË 1; Mahowald v. Thompson-Starrett Co., (Minn.) 158 NW 913; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070].

[a] Illustrations.-The failure of an employee to give notice to his employer at the time of his contract

of hire that he claims his commonlaw right of action, as required by the workmen's compensation act (St. [1911] c 751) pt 1 § 5, renders the act operative, regardless of whether the employer gave notice that he was a subscriber under the act, as required by the amendment (St. [1912] c 571 § 16) to pt 4 § 21. Young V. Duncan, 218 Mass. 346, 350, 106 NE 1 (where the court said: "If an employee desires to avoid the act and preserve his common-law rights, he must give notice to that effect in

the absence of fraud when he enters the employment rather than when he is notified of insurance by the employer, or he is held to have availed himself of the act").

2. Bayon v. Beckley, 89 Conn. 154, 93 A 139.

[a] Illustration.-Workmen's compensation act (Acts [1913] c 138) pt B42, which provides that any employer who after accepting the act shall fail to comply with the requirements of § 30 as to insurance shall forfeit all benefits thereunder and shall be liable as if he had not accepted, deprives the employer of the benefits accruing to him from his acceptance, which are the preservation of the common-law defenses in case the employee brings an action against him for his negligence, but does not deprive the employee of his benefit from such acceptance so as to prevent a recovery of compensation under the act in a case where there was no common-law liability. Bayon v. Beckley, 89 Conn. 154, 93 A 139.

Election by employee where employer in default see infra § 156. 3. Art 18 § 8.

4. Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 P 465.

low-servant defense and in which the defenses of contributory negligence and assumption of risk are questions to be left to the jury. Const., secs. 4, 5, art. 18. (2) Employers' liability law, which applies to hazardous occupations where the injury or death is not caused by his own negligence. Const., sec. 7, art. 18, (3) The compulsory compensation law, applicable to especially dangerous occupations, by which he may recover compensation without fault upon the part of the employer. Const., 8, art. 18." Consolidated' Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 384, 139 P 465.

sec.

5. Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 387, 139 P 465.

"It is optional with the injured employee as to whether he will accept the compensation. The employee's right to exercise this option being a constitutional right, legislation is impotent to deprive him of it.

If the employee is never injured, he can make no claim for 'such compensation,' nor exercise his option. After a cause of action has accrued to the employee, he may choose to accept the compensation allowed under this act, and the legislature is competent to prescribe the steps he shall take in its enforcement, but it cannot require him to elect, in advance of any injury, or the accrual of any right, which remedy he will pursue for redress. Therefore, any expressions in the workmen's compulsory compensation act that seemingly require that the employee shall elect, in advance of injury, his remedy for redress should be read and construed in view of the constitutional provision permitting him to exercise his option, after the injury, either to claim compensation or sue for damages. While section 14 of the workmen's compulsory compensation act, supra, and the first proviso thereof, when taken alone, would seem to require the employee to elect his remedy for redress of injury in advance, or rather attempts to fix his status as under that act, in the absence of a disaffirmance of its provisions by written contract or by written notice before the accident, that construction, being repugnant to the constitutional provision permitting the exercise of his option after the injury, should not be adopted, if it can be given a meaning that will harmonize with the constitutional provision." Consolidated Arizona Smelting Co. v. Ujack, supra.

6. Behringer v. Inspiration Cons. Copper Co., 17 Ariz. 232, 235, 149 P 1065.