22

reached, but in reference to the method of reaching the result.2 Thus it has commonly been held, in cases where a horse and driver have been let by a general employer into the service of another, that the driver is subject to the control, and therefore is the agent, of his general employer as to the care and management of the horse and vehicle.23 That one pays a workman his wages, exercises supervision over his work, selects the workmen, and has power to dismiss him, though matters proper to consider, do not necessarily determine that he is the employer.24

22 Pigeon v. Employers' Liability Assur. Corporation, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Knowlton, C. J., in Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 393, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648.

In Grischuck v. S. Borden & Co., 1 Conn. Comp. Dec. 633 (affirmed by superior court on appeal), where the deceased workman had been employed as a day laborer at odd jobs by the respondent for a number of years, and on the day of the injury was loaned by him to another firm for the purpose of making repairs in an elevator used by them in their business, the employer was held liable to the dependent widow, and the firm to whom he was loaned was released from liability.

23 Pigeon v. Employers' Liability Assur. Corporation (Mass.) supra, supported by Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Hussey v. Franey, 205 Mass. 413, 91 N. E. 391, 137 Am. St. Rep. 460; Corliss v. Keown, 207 Mass. 149, 93 N. E. 143; Waldock v. Winfield [1901] 2 K. B. 596; Hunt v. N. Y., N. H. & H. R. R., 212 Mass. 102, 107, 98 N. E. 787, 40 L. R. A. (N. S.) 778; Rongo v. R. Waddington & Sons, 87 N. J. Law, 395, 94 Atl. 408.

24 Pollard v. Goole & Hull Steam Towing Co., Ltd., 3 B. W. C. C. 366, C. A. Where a lumber company requested a transfer company to supply teams and drivers for $5.50 a day, and the transfer company called upon a contract teamster to supply a team and driver at $5 a day, and the contract teamster directed a driver, regularly employed by him at $2.50 a day, to take his team for work at the lumber company's yard, and there the driver hitched his team to a wagon of lumber supplied by the lumber company and hauled it away, the loading and designation of place being under the direction of the lumber company and the control over details and power to discharge residing in the contract teamster, the "employer" was the contract teamster, and he was primarily liable for compensation for injury sustained by the driver while doing such driving. McLeod v. Kirkpatrick, 3 Cal. I. A. C. Dec. 19.

Wages. Where a section boss requests his men to assist a rancher to fight a fire from which the railroad was not in danger, and the rancher hires and

Workmen engaged in mining coal are employés of the mine owner, though the mining operations are carried on under a con

pays the men, the rancher, not the railroad, is the employer. Mazzini v. Pacific Coast Ry., 2 Cal. I. A. C. Dec. 962. Where a golf club authorizes a boy to act as caddie for members playing on its links, on condition that he be under the direction of the club's caddie master and that the power to reduce wages, reprimand, suspend, or discharge lies with the club; that the caddie report to the caddie master upon arriving at the links each day, and stay in the caddie house until called for, the rate of his pay being fixed by the club, although paid by the individual player, such rate of pay not to be exceeded in any case, and the presence of caddies upon the links is secured by the club to make the links more valuable to members, the boy is an employé of the club, and not of the member whom he may be serving when injured. Harris v. Claremont Country Club, 2 Cal. I. A. C. Dec. 1047. Where one who has agreed to furnish labor and material to repair a machine in consideration of a per cent. of the profits in addition to a payment to be made, calls in the service of an employé of the owner of the machine, to superintend and assist in the repair work, and such employé is paid by the repairer as agreed, such employé is an employé of the repairer and not of the owner of the machine. Younger v. Gilro Machine Co., 2 Cal. I. A. C. Dec. 908. Where the appointment and amount of pay of a workman hired by a board of guardians was subject to the approval of the Local Government Board, he was notwithstanding in the employ of the guardians.

In Iacovazzi v. Coppolo, 1 Conn. Comp. Dec. 476, where the workman at the time of his injury was working for the benefit of a firm of plumbers, to whom he had been assigned by the respondent under a contract between respondent and the plumbers, but was paid his wages by the respondent, he was in respondent's employ. In Brady v. Grove, 1 Conn. Comp. Dec. 240, where the employé was engaged in creosoting a building built by one respondent, who was a building contractor, upon land owned by him, and was paid by him, though he worked under the immediate supervision of another respondent who acted as superintendent and foreman for the first, it was held the workman was the employé of the former, and the latter was discharged from liability. In Fiorio v. Ferrie, 1 Conn. Comp. Dec. 459, where respondent engaged a driver and his team, and paid him, and furnished man and team for a price per day to the city, which directed his work, but could not discharge him, the driver working sometimes for respondent after hours or on rainy days, when he was not needed by the city, and being occasionally hired to others, he was an employé of respondent and not of the city. In Sinner v. Town of Colchester, 1 Conn. Comp. Dec. 286, where claimant was employed by a supervisor in employ of the town, and his services paid for to the supervisor by the town, compensation was awarded against both the supervisor and the town, and the question of which of the two was properly

tract with a third party, who selects and pays the workmen, where the mine owner has reserved control and supervision over the working of the mine.25

responsible was left for them to decide among themselves. In De Palma v. Home Construction Co., 1 Conn. Comp. Dec. 358, where respondent company employed De Palma Bros. to build its houses, they in turn employing any one they wanted to work for them, keeping the time, but the wages being paid by respondent, and it being understood that respondent could discharge or transfer any one so employed, it was held that claimant, a brother of the De Palma Bros. and employed by them under this arrangement, was an employé of the respondent. Where on a rehearing it appeared that the claimant, a "shenango" or longshoreman who worked by the day for whoever would hire him, without having any definite contract for any length of time, but being paid each night and being free to work for whom he pleased the next day, had started work for the defendants, but later was sent to work for another company, because defendants had not sufficient men to do their work, and other men sent with him were paid by the latter company, that company was his employer, and the former award against defendants was rescinded. Sala v. Martorella & Giannesi, The Bulletin, N. Y., Vol. I, No. 6, p. 11. Finlay v. Tullamore Guardians (1914) 7 B. W. C. C. 973, C. A. Where a workman on a ship received his pay from a stevedore, who worked for the respondents and also other firms, and who testified that he handled the money merely for the convenience of the respondents, the workman was in respondent's employ. Pollard v. Goole & Hull Steam Towing Co., Ltd. (1910) 3 B. W. C. C. 366, C. A.

Supervision.-Where a man contracted with a shipowner to clean the boilers of a vessel, and paid the men he got to do it, the fact that they were to some extent supervised by the shipowner's foreman did not make them his employés. Spiers v. Elderslie Steamship Co., Ltd. (1910) 2 B. W. C. C. 205, Ct. of Sess. Where a ganger, employed by a firm of drug grinders to unload for them a barge of sulphur and to carry it in their bags into their warehouse, brought his own gang, and divided the money received among them, one of them who was injured was not in the employ of the drug firm. Bobbey v. Crosbie (1915) 8 B. W. C. C. 236, C. A. Where the master of a trading schooner was killed, it was the managing owner, and not all of the registered owners, who was liable. Carswell v. Sharp et al. (1910) 3 B. W. C. C. 552, Ct. of Sess. Where a workman was engaged in plating in a shipbuilders' yard as a member of a squad, in which he was placed by the head of the squad, but with the consent of the shipbuilders' foreman, this squad working the regulation hours of the yard, and being paid by the shipbuilders 25 Skinner v. Stratton Fire Clay Co., vol. I, No. 7, Bul. Ohio Indus. Com. p. 103.

The Acts usually include municipalities when they become employers, 20 regardless of the number of workmen employed by

26

for overtime, having the shipbuilders' foreman as overseer, and obeying printed rules "to be observed by the workmen in the employment of" the shipbuilders, although they apportioned their work as they liked, and paid for their own unskilled labor when needed, the man working in this squad was in the employ of the shipbuilders. McCready v. Dunlop & Co. (1900) 2 F. 1027, Ct. of Sess. (Act of 1897). A., the owner of a coal mine, entered into a contract with B. to operate the mine, by the terms of which contract A. was to furnish all posts, timbers, and track material and implements, and B. was to mine the coal in a workmanlike manner, do necessary track laying and timbering, preserve the entry in good condition, do draining, etc., and furnish all labor necessary for the mining of the coal. The coal was to be placed in A.'s car as taken from the mine, and B. was to receive from A. a stated price per ton for all coal so taken from the mine, it being part of the agreement that A. was to take and pay for all the coal so mined. The mining was done subject to the supervision of a mine foreman employed by A. C. was employed as a miner in the mine so operated, and was killed while in the course of his employment. The commission held that C. was an employé of A. McAllister v. National Fireproofing Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 107. In Soloski v. Strickland, 1 Conn. Comp. Dec. 56, where the respondent engaged another man to cut wood on his lot at a rate per cord under certain specifications, and this third party hired claimant, making a profit on his work, having the power to discharge him and to direct

26 City of Butte v. Indus. Acc. Bd. (Mont.) 15€ Pac. 130 (Code Supp. 1913, tit. 12, c. 8A, § 2477m[b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) pp. 7, 8. A city is an "employer." (Wk. Comp. Act, § 13, par. 1) In re Frances E. Lyman, vol. I, No. 7, Bul, Ohio Indus. Com. p. 182.

The city of Superior was liable under the act for the death of a caretaker of a park from injuries received while he was mowing grass in the space between the sidewalk and the curb. (St. 1913, § 925-171a, and St. 1913, § 925-3) City of Superior v. Industrial Commission, 160 Wis. 541, 152 N. W. 151.

Where the Act applies to employers "building or maintaining any structure," a municipal corporation which operates and maintains its own water system is an employer within the Act. (Act 1911, p. 314, § 2; Jones & A. Anu. St. 1913, par. 5450) Brown v. City of Decatur, 188 Ill. App. 147. A municipality, or quasi public municipality, such as the Sanitary District of Chicago, comes within the Workmen's Compensation Act. Radigen v. Sanitary Dist. of Chicago, Bulletin No. 1, Ill., p. 138.

them,27 and supersede charter provisions relative to presentation of claims against a city.28

§ 29.

Contemporaneous employment by different em

ployers

Employment by more than one employer at the same time does not prevent recovery of compensation. Thus the fact that deceased was employed in the dual capacity of employé of the defendant and of the United States government did not make him any the less an employé of defendant; the applicant having a right to elect which of the employers to proceed against.20 Likewise the fact that a night watchman is contemporaneously employed by several owners of buildings does not prevent him from being the employé of each. In the absence of any joint agreement among them, such

what trees should be cut, claimant was not an employé of the respondent, but of the contractor.

Selection. Men for measuring and weighing cargo, licensed by a port authority, were sent out in turn as called for by shipowners, and the charges per ton, which were collected by the headman, were divided, after taking out certain expenses of the port authority, between himself and the workmen. One of these meters, who was injured, was in the employ of the shipowner. Wilmerson v. Lynn & Hamburg Steamship Co. (1913) 6 B. W. C. C. 542, C. A. Dismissal. Although the foreman of a squad of coal trimmers, working on coal which a firm of shipping agents were loading on a ship, had the power to dismiss the men, and was appointed by the harbor commissioners, one of the squad who was injured was in the employ of the firm, which prepared the plan by which the work was done, and which controlled and supervised the work. Gorman v. Gibson & Co. (1910) S. C. 317, 47 S. L. R. 394.

27 Countries, cities, townships, incorporated villages, and school districts are employers within the meaning of the Ohio Act, regardless of the number of workmen employed by them. (Wk. Comp. Act, § 13) In re Horvat, vol. I, No. 7, Bul. Ohio Indus. Com. p. 155.

28 (Wk. Comp. Act Ex. Sess. 1912, pt. 6, § 5) Purdy v. City of Sault Ste. Marie (Mich.) 155 N. W. 597.

29 M. Johnston v. Mountain Commercial Co., 1 Cal. I. A. C. Dec. 100.

30 Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284.

A night watchman, who had contracts of hire with six independent con