on temporary work by a distress com- to the owner, is a bailee, and not a mittee under the unemployed workmen's workman.5 act of 1905.99 And a blind man who, One member of a partnership is not upon entering an institution for the entitled to compensation for injuries blind, stipulated that he would give his received while working for the partnerservices for what they were worth, and ship. But a person who owns ten sixtyin return receive board, lodging, and fourths shares of a trading vessel, and clothing, and 5 shillings a month in who is employed as master by the manmoney.1 aging 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; 8 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 The statute expressly provides that the term workman does not include a member of the employer's family, dwelling in his house, nor a member of the police force.3 Workmen engaged in lumbering operations are not within the provisions of the Quebec act.1 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 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. Č. 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 Members of the crew of a fishing vessel who are paid by a share of the profits or gross earnings of the vessel are expressly excluded from the act. See ante, 105. 2. Independent contractors. to exclude him from the benefits of the compensation act. 12 Nor is a workman disentitled to compensation merely because he contracted to do the work at a lump sum, and not by the day.13 The question who are independent contractors has been passed upon in a number of cases involving the compen It has been held that the word "work-sation act, which are cited below, but man" does not embrace employees who it should be noted that the act does not occupy the position of independent con- attempt to define the term "independent tractors.11 But the mere fact that a contractors," and these cases are govman works by the piece is not sufficient erned by general principles.14 gear and repairs, and the master was to "workman." Taylor v. Burnham [1910] S. hire the crew and pay all other expenses, C. 705, 47 Scot. L. R. 643, 3 B. W. C. C. 569. and go to what port he liked, and was to A finding that the injured man was a be paid by taking two thirds of the gross workman is justifiable where he was one of freight. Boon v. Quance (1910) 102 L. T. a squad of mechanics who were paid by the N. S. (Eng.) 443, 3 B. W. C. C. 106. piece, for work on a vessel under construction, but were bound to work continuously all the working hours recognized in the yard, were supervised by the foreman of the employer, and were subject to printed rules and regulations "to be observed by the workmen in the employment" of shipbuilders. M'Cready v. Dunlop (1900) 2 Sc. Sess. Cas. 5th series, 1027, 37 Scot. L. R. 779, 8 Scot. L. T. 91. Hughes v. Postlethwaite (1910) 4 B. W. C. C. (Eng.) 105, was decided upon the authority of Boon v. Quance, to which it was similar in facts. The master of a barge, who receives one half the net earnings as his wages, out of which he has to pay the mate, is not a workman. Cole v. Shrubsall [1912] W. C. Rep. (Eng.) 226, 5 B. W. C. C. 337. The owners of a vessel are not estopped A finding that the injured person was a from denying that a mate was employed by "workman" is justifiable, where he was emthem by the fact that compensation was ployed in a quarry under an agreement that given him for several months, which was he should be paid so much for every ton paid through an insurance company with he got out, and the tools were found for which the owners had insured both the cap-him, and he used to hire and discharge the tain and the mate, it being shown that the mate was engaged by the captain, and paid by him on the sharing system out of the profits of the voyage. Standing v. Eastwood [1912] W. C. Rep. (Eng.) 200, 106 L. T. N. S. 477, 5 B. W. C. C. 268. There can be no compensation recovered for the death of a mate who was to receive a share of the freight of the voyage. Hoare v. The Cecil Rhodes (1911) 5 B. W. C. C. (Eng.) 49. The decisions in these cases may also be referred to the principle that compensation is not recoverable where a "contract of service" does not exist between the workman and the alleged employer. See ante, 114. 11 Simmons v. Faulds (1901) 17 Times L. R. (Eng.) 352, 65 J. P. 371; Vamplew v. Parkgate Iron & Steel Co. [1903] 1 K. B. (Eng.) 851, 72 L. J. K. B. N. S. 575, 67 J. P. 417, 51 Week. Rep. 691, 88 L. T. N. S. 756, 19 Times L. R. 421; M'Gregor v. Dansken (1899) 1 Sc. Sess. Cas. 5th series, 536, 36 Scot. L. R. 393, 6 Scot. L. T. 308. 12A workman whose trade was the fixing of enamel letters to windows, and who had been for a year in the habit of calling on a firm who made and dealt in enamel letters, and of obtaining work from them, being paid by the piece, defraying his own traveling expenses, and under no obligation to undertake any particular job, and who was at liberty to accept, and occasionally accepted, work from other employers, is a men who worked under him. Evans v. Penwyllt Dinas Silica Brick Co. (1901) 18 Times L. R. (Eng.) 58. A stone breaker engaged by a contractor to break stones for road metal at a certain rate per cubic yard of metal broken, and subject to the orders of the contractor, and to dismissal by him, is a "workman." Doharty v. Boyd [1909] S. C. 87, 46 Scot. L. R. 71. A miner who is paid so much per ton of coal extracted, and extra for timbering, and who supplies his own tools and works in a room alone, as he can earn more by so doing than by sharing the room with another miner, is not an independent contractor. Cargeme v. Alberta Coal & Min. Co. (1912) 6 D. L. R. (Alberta) 231, 7 B. W. C. C. 1020, 22 West. L. Rep. (Can.) 68. 13 Ibid. 14 A man who enters into an agreement with a mining company to carry out certain specified operations is an independent contractor, and not a workman, where the mining company exercises no control over the man apart from the agreement. Reid v. Leitch Collieries (1912) 7 B. W. C. C. (Alberta) 1017. a An independent contract by which slater undertook to do certain slating work for the employer is not changed into a contract of employment by the fact that after four days of work, the employer, being dissatisfied with the slow progress that was made, sent another slater with a laborer to "push the work on." Barnes v. Evans | when required, to drag logs from one place (1914) W. C. & Ins. Rep. (Eng.) 113, 7 to another, for which he is paid at a cerB. W. C. C. 24. tain rate per day, and whose share of the work is confined to leading the horse, which he might do by means of a substitute, there being no contract that he should perform the work personally, is not a "workman." Chisholm v. Walker [1909] S. C. 31, 46 Scot. L. R. 24, 2 B. W. C. C. 261. Paterson v. Lockhart (Scot.) infra, in which the man was bound to do the work himself, was distinguished. A laborer who, with several others, enters into a contract with a quarryman to remove the surface earth from a new part of the quarry, at so much per cubic yard, and who exercises full control over the work, and is not tied down to hours, is an independent contractor; and his wife is not entitled to compensation for injuries which he received, resulting in his death. Hayden v. Dick (1902) 5 Sc. Sess. Cas. 5th series, 150, 40 Scot. L. R. 95, 10 Scot. L. T. 380. A man who agreed to undertake the trapping of rabbits on certain premises at so much a couple, the employer to supply the gear and also to allow the use of a cottage for the work, is not a workman, but an independent contractor. M'Connell v. Galbraith (1913) 48 Ir. Law Times, 30 W. C. & Ins. Rep. 92, 7 B. W. C. C. 968. A cartman who carted stones for a county council, doing the work when he wished, and subject to no control by the council except that their surveyor told him where the stones were to be placed, and who was paid by the day for the work he did, may be found not to be a workman within the act. Ryan v. Tipperary (1912) 46 Ir. Law Times, 69, 5 B. Ŵ. C. C. 578. But the finding that the applicant for A man who enters into a written con- by evidence that he was employed by a compensation was a workman is supported tract with harbor commissioners "for sup-road overseer to cart stone, that he furplying a yawl and crew of four men" for nished his own cart and horse, and was use at a certain pilot station and lighthouse paid so much per day, and that he might is an independent contractor, and not a do work for other people on any particular workman. Walsh v. Waterford Harbour day "provided that he was not badly wantComrs. (1914) W. C. & Ins. Rep. 16, 47 Ir. ed." O'Donnell v. Clare County Council L. Times 263, 7 B. W. C. C. 960. (1913) W. C. & Ins. Rep. 273, 47 Ir. Law Times 41, 6 B. W. C. C. 457. Where a contractor had a contract from a district council to erect certain laborers' cottages, and made an agreement with a mason for the latter to do the work, the contractor furnishing the materials, and the mason agreed to carry out the contract to the satisfaction of the council's engineer, and to have the work finished in the time specified in the contract between the council and the contractor, and there was no stipulation that he was to work continuously, the county court judge may find that the mason was a subcontractor, and that the relation between him and the con tractor was not that of master and servant, but that of contractor and subcontractor; the fact that he was to be paid by the day not deciding the case. Byrne v. Baltinglass Rural Dist. Council (1911) 45 Ir. L. Times, 206, 5 B. W. C. C. 566. A man engaged by a farm bailiff to cut down certain trees may be found to be an independent contractor, and not a workman, where there were four men engaged to do the work, and the work was paid for at so much a tree and so much for extras, and the men cut the tree as and when they liked, were not bound to work every day unless they saw fit, and the bailiff made little or no interference with the work provided it was done within a reasonable time, notwithstanding the bailiff had, on a former occasion, sent a man away for drunkenness, and on this occasion once told a man which way to make a tree fall, and, immediately after the injury to the workman, increased the number of workmen from three to four. Curtis v. Plumptre (1913) W. C. & Ins. Rep. (Eng.) 195, 6 B. W. C. C. 87. The owner of a horse, who contracts, A plumber called in to make repairs, and who was paid for the time he worked, the owner of the house supplying the material, indicating where the defect was, and from time to time, during the course of the work, visiting the place to see what progress had been made, is a servant, and not an independent contractor. McNally v. Fitzgerald (1914) 48 Ir. Law Times 4, 7 B. W. C. C. 966. Where a paper hanger and decorator agreed to paper a house being erected by a builder, and was permitted to come and go and work exactly when he liked, and made out a bill on the printed form of the work done by him, and receipted it on payment, and there was evidence at the hearing of a claim for compensation that the builder had told "all his other men," except the paper hanger, not to use the plank by the breaking of which he was injured, the county court judge may find that the paper hanger was a workman within the meaning of the act. Stanbridge (1913) W. C. & Ins. Rep. (Eng.) 515, 6 B. W. C. C. 568. Lewis v. The relation of master and servant exists where a man who provided his own horse and cart entered into a contract with a dairy society to cart his milk to and from the creamery during a certain period on such dates as it should fix, for which service he was to be paid at the rate of onehalf penny per gallon. Clark v. BailieBorough Co-op. Agri. & D. Soc. (1913) W. C. & Ins. Rep. (Eng.) 374, as cited in Law Reports Current Dig. 1913, col. 772. A man engaged to take charge and manage a herd of cows at a dairy, who, under the contract of employment, is to feed 3. "Casual" employees. For American cases defining this term, see post, 247. A charwoman who has been employed regularly every Friday and every other Tuesday for over eighteen months is in the regular, and not the casual, employment of the defendants.15 In a few cases it has been held that a window washer who worked only occasionally as such work was necessary was engaged in casual employment only 16 The work of cutting down or lopping trees, which is done by a workman incidentally, in connection with other work, is casual.17 But a workman employed each season for several weeks or even months at a time to do work in the employer's woods, in cutting underwood, trimming trees, etc., and who was paid by the week, not losing any time because of rain, is not a casual laborer. 18 The owner of a small garden which is the herd "according to instructions from the employers," to manufacture "the milk into goods, as may be desired by the employers," and to do various other things, "as may be required by the employers," is a workman within the meaning of the act. Roper v. Freke (1915) 31 Times L. R. (Eng.) 507. A man engaged to quarry, from a quarry on an estate, stone blocks for wire fences and farm buildings to meet estate requirements, in such quantities as the factor should direct, who was paid by the day, and who might employ assistants, to be paid through him at the same rate, and whose tools were supplied partly by himself and partly by the estate, and who was told where he was to work, but was free to choose the part of the quarry where the excavation was to be made,-was a servant or workman in the sense of the act. Paterson v. Lockhart (1906) 7 Sc. Sess. Cas. 5th series, 954, 42 Scot. L. R. 24. See Chisholm v. Walker (Scot.) supra. As maritime work was not one of the descriptions of employment covered by the act of 1897, it did not affect the relation between shipowners and sailors "when engaged in their ordinary occupawork without receiving on each occasion a special invitation or special permission to do so, his employment was of a casual nature. Rennie v. Reid [1908] S. C. (Scot.) 1057. The county court judge is justified in finding that the employment is of a casual nature where the workman, a window cleaner, cleaned the windows of a private house for the same employer once a month for about four years, when he fell and died as a result, and no definite arrangements had been made in advance as to the regular time for the work. Ritchings v. Bryant (1913) W. C. & Ins. Rep. (Eng.) 171, 6 B. W. C. C. 183. 17 Where a carpenter undertakes a job of cutting down trees on the property of a person for whom he has been working as a carpenter, his employment is casual. M'Carthy v. Norcott (1908) 43 Ir. Law Times, 17. The county court judge may find that a jobbing gardener who was employed to 15 Dewhurst v. Mather [1908] 2 K. B. cut down and lop some trees in the grounds (Eng.) 754, 77 L. J. K. B. N. S. 1077, 99 of a large private house, and who, after L. T. N. S. 568, 24 Times L. R. 819, 52 that work was done, assisted in relaying Sol. Jo. 681. part of the lawn, and after the lawn was finished was put on to cut and lop some more trees, and was paid at so much per day, there being nothing said as to how long he was to be employed, was engaged in employment of a casual nature, and was not within the protection of the statute. Knight v. Bucknil (1913) W. C. & Ins. Rep. (Eng.) 175, 57 Sol. Jo. 245, 6 B. W. C. C. 160. 16 A man who was sent for to wash windows whenever they needed it, which was at intervals of about six weeks, there being no agreement between the parties, was in the casual employment only, although he had been doing the work for about two years. Hill v. Begg [1908] 2 K. B. (Eng.) 802, 77 L. J. K. B. N. S. 1074, 99 L. T. N. S. 104, 24 Times L. R. 711, 52 Sol. Jo. 581. Where a window cleaner about once a month went to clean the windows of the house of a medical practitioner, who used a portion of the house in connection with his professional practice, there being no formal contract between the parties, and the window cleaner calling and doing the 18 Smith v. Buxton (1915) 84 L. J. K. B. N. S. (Eng.) 697, 112 L. T. N. S. 893, W. C. & Ins. Rep. 126, 8 B. W. C. C. 196. 19 Tombs v. Bomford (1912) W. C. Rep. (Eng.) 229, 106 L. T. N. S. 823, 5 B. W. C. C. 338. 20 Smith v. Buxton (Eng.) supra. This sea service, and apprentices in the sea 5. Remuneration. The word "remuneration," as used in the act (§ 13 and sched. 1, 2 (a)), means the same as "earnings." 24 tion of sailing upon the seas.” 21 doctrine does not involve the consequence fishing service." that the mere fact of the accidents having happened in or upon a ship prevents the injured workman from claiming compensation under the act. His right of recovery must be tested with reference to the circumstances attending the accident.22 Under the act of 1897, the seaman on a dock or harbor in a foreign country was in the same position in reference to compensation as if he was at sea. But the act of 1906 is express-means, dependent for the ordinary necesly declared (§ 7) to be applicable to "masters, seamen, and apprentices in the 23 21 Lord Halsbury in Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627. A seaman engaged in casting off his ship from a quay is doing an ordinary seaman's work, and is not within the act of 1897. Williams v. Mack (1903; C. C.) 116 L. T. Jo. (Eng.) 179, 6 W. C. C. 113. The act of 1897 does not apply to a seaman injured while doing a seaman's work. Griffiths v. Warren (1904; C. C.) 116 L. T. Jo. (Eng.) 575, 6 W. C. C. 65. In an Irish case it was held that an able-bodied seaman, working at the hoisting of a ship's boat by means of a crane on the quay alongside his ship, is merely carrying out the normal duties of a seaman, and is therefore not engaged in an employment to which the act applies. O'Hanlon v. Dundalk & N. Steam Packet Co. (1899) 33 Ir. Law Times, 36. 22 An ordinary laborer employed for the purpose of doing anything that is to be done on a ship lying in a dock is not without the scope of the act. Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627. Nor is a man working on a dredger, which went 2 miles out to sea for the purpose of being emptied. Chambers v. Whitehaven Harbour Comrs. [1899] 2 Q. B. (Eng.) 132, 68 L. J. Q. B. N. S. 740, 47 Week. Rep. 533, 80 L. T. N. S. 586, 15 Times L. R. 341. 23 Griffiths v. Warren (Eng.) supra. 24 In estimating the remuneration of the purser on a ship under § 13 of the act, both a bonus which he received and the profit which he made by selling whisky, are to be taken into consideration. Skailes v. Blue Anchor Line [1911] 1 K. B. (Eng.) 360, 80 L. J. K. B. N. S. 442, 103 L. T. N. S. 741, 27 Times L. R. 119, 55 Sol. Jo. 107, 4 B. W. C. C. 16. A ship captain is properly held to be a workman receiving less than £250 a year where he was employed under a contract by which he was to receive his board and accommodation, estimated at £45 and 10s. per annum, and £20 per month, with a bonus of £48 if the ship kept free from all damage and claim, but otherwise was e. Who are "dependents." For American decisions defining this term, see post, 248. 1. In England and Ireland and in Scotland under the Act of 1906. The word "dependent' probably saries of life for a person of that class and position.' The term does not sig "25 to forfeit the bonus and receive but £16 per month, and was lost at sea with his ship, since, had he survived, he, under the terms of the contract, would have received only the £16 per month, plus the board and accommodation. Williams v The Maritime [1915] 2 K. B. (Eng.) 137, 84 L. J. K. B. N. S. 633, [1915] W. C. & Ins. Rep. 97, 8 B. W. C. C. 267, [1915] W. N. 71, 31 Times L. R. 218. Lord CozensHardy, M. R., said: "It was contended on behalf of the employers, that regard ought to be had to the circumstance that, under the prior agreement, the terms of which were less beneficial to the captain, his average remuneration had exceeded £250, and further, that regard ought to be had to the fact that the shipowners did not always enforce against an old servant their rights to a reduction of salary, unless satisfied that there was real fault on the captain's part. It seems to me that such generosity on the part of the owners cannot be taken into account. The question is, what was the salary to which he was entitled? To answer this question, the language of the agreement itself is suffi cient." 25 See Simmons v. White Bros. [1899] 1 Q. B. (Eng.) 1007, 68 L. J. Q. B. N. S. 507, 47 Week. Rep. 513, 80 L. T. N. S. 344, 15 Times L. R. 263, and Lord Shand in Main Colliery Co. v. Davies [1900] A. C. (Eng.) 358, 69 L. J. Q. B. N. S. 755, 83 L. T. N. S. 83, 16 Times L. R. 460, 65 J. P. 20. In the latter case Lords Halsbury and Davey expressed the opinion that the question of dependency was to be decided without respect to the standard of living in the neighborhood or the class to which the family belong; that the act sets up no such standard; and that the actual means of living and expenditure need alone be regarded. Lord Shand did not agree with this view. The latter case was followed by French v. Underwood (1903) 19 Times L. R. (Eng.) 416. In Howells v. Vivian (1901) 85 L. T. N. S. (Eng.) 529, 4 W. C. C. 106, Collins, M. R., said: "It seems to me to be difficult to approach the question of dependency, as a matter of law, without taking some standard of living as a guide. There |