14

the fact that the wages are fixed in part by the profits, nor that they are not definitely fixed in amount,15 nor that they are payable on a commission basis, in whole or in part, determines the relation of employer and employé.16 Nor, as a general rule, will it preclude one from being an employé that he is to be paid by the job," or on a piece basis, 18 that he is employed merely by the day,"

after certain current expenses had been deducted (Aberdeen Steam Trawling & Fishing Co., Ltd., v. Gill [1909] 1 B. W. C. C. 274); and where a share hand on a trawler was injured while working at storing fish in a cutter, which was to take the fish to the market, although he was free to refuse the work, but was paid $1 for it, which sum was divided among the crew on the trawler (Whelan v. Great Northern Steam Fishing Co., Ltd. [1910] 2 B. W. C. C. 235). Where workmen on fishing vessels received, in addition to their wages, stocker money, trip money, etc., but also received additional wages, because the share money was so little as to not be worth considering, they were not paid by share, but were workmen. Williams v. Steam Trawler Duncan (Owners of), and McCord v. Steam Trawler City of Liverpool (Owners of), (1914) 7 B. W. C. C. 767, C. A.

14 Employers are no doubt entitled to compensation, even though their wages are fixed in part by the profits of the concern for which they work. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3.

15 Where a manager of the defendant's business had been offered an interest in the business, but refused, and, though he had no agreement as to the amount of his wages, drew large sums from time to time with the full knowledge and permission of his employer, accounts being kept of the amounts drawn, and this amount was listed under his schedule of income for taxation as salary and wages, he was an employé, even though he was not included in the pay roll upon which the insurance premium was paid. Howard v. George Howard, Inc., The Bulletin, N. Y., vol. 1, No. 11, p. 14.

16 Id. p. 20.

Where an employé was hired at a fixed salary for fixed hours per day, during which time his employer had full direction and control over his work, but was allowed a commission on all new business which he was able to get for his employer, not neglecting any assigned duties to search for such new

17 In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598.

18 Piece workers, who are not independent contractors, with a chance to gain or lose upon the employment of others, are employés to the same extent as if they were working for wages. Malott v. Healey, 2 Cal. I. A. C. Dec. 103. 19 Gove v. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702.

or is a student workman,20 or that he is an officer or director of the corporation employing him." It is essential, however, that some wages be in fact paid or payable.22 The fact that one is a director of a bank gives him no right to compensation as an employé thereof.23

business, the arrangement on a commission basis did not create a dual relationship, and he was an employé, regardless of which work he was doing at the time of the injury. Cameron v. Pillsbury (Cal.) 159 Pac. 149.

20 Rulings Wash. Ins. Com. 1915, p. 16.

21 Craycroft v. Cray rcft-Herrold Brick Co., 2 Cal. I. A. C. Dec. 654.

An officer of a corporation, even though he be the principal stockholder, is not debarred from compensation by that reason alone. Kennedy v. Kennedy Mfg. Co., The Bulletin, N. Y., vol. 1, No. 5, p. 12. An officer and director of a company is nevertheless an employé of the company, where he receives regular wages and performs the ordinary duties of an employé of the business. Bowne v. S. W. Bowne Co., The Bulletin, N. Y., vol. 1, No. 12, p. 17. A mechanic, operating a machine for making moldings at a day wage, was an employé, even though he was president and stockholder of the employing company. Cantor v. Rubin Musicant Co., 3 N. Y. St. Dep. Rep. 392.

In Welton v. Waterbury Rolling Mill, 1 Conn. Comp. Dec. 78, it was held, where the claimant had a contract as supervisor of defendant's casting department and spent half his time traveling in the interests of the company, that he was a director and treasurer of the company, though receiving no salary for the latter duties, did not preclude him from being an employé.

22 In Loveland v. Parish of St. Thomas Church, 1 Conn. Comp. Dec. 14, it was held that a choir boy, paid 25 cents a month for singing, but more in the nature of a reward for punctuality and regularity than wages, was not an employé. In Lynch v. Abel, 1 Conn. Comp. Dec. 520, where the respondent lived upon a farm owned by his father, in return providing a home for his father, who occasionally did small things around the house, but received no pay and was under no obligation to work, the father was not an employé of the respondent. In Varine v. Sargeant, 1 Conn. Comp. Dec. 194, where, after finishing one job, the workman was sent to a shanty to wait till the weather became so certain other work could be started, whether or not he paid any board being disputed, it was held that it had not been shown that he had entered the employment.

23 In Burnham v. Thames National Bank, 1 Conn. Comp. Dec. 339, it was held that the director of a bank is not an employé of the bank, though he be paid for attendance at meetings, such pay bearing no relation to the amount or value of the work done, and being no inducement to undertaking such

"The California Commission has held that where the corporate stock is all in the hands of the directors, two directors, father and son, as president and secretary, being authorized to exercise full control of the business, the son, on being injured while acting in the course of his employment as secretary, can recover compensation against such close corporation; 24 also that the fact that one was general manager on a salary conclusively showed the fact of his employment, though he was also president of the corporation.25 A mere secret intention to terminate an employment does not terminate it, in the absence of notice or an abandonment of the undertaking by the employé's failure to perform the work assigned him." Convicts from the different state penal institutions are not engaged in any contract of employment within the meaning of the Washington Act.27 A seaman under contract with a ship is outside the scope of that Act.28

The provisions of the Connecticut Act do not extend to include a prisoner working in a chair factory in a jail, under no contract and receiving no pay; the county receiving a lump sum from the chair factory for the work done.29

Many of the statutes define "employé." By the New York Act, "employé" is defined as “a person who is engaged in a hazardous employment in the service of an employer, carrying on or conducting the same upon the premises or at the plant, or in the course of

duties; the duties of the directors are regulated as much by law as by the bank, and they have no power individually, except as a member of the board.

24 Id.

25 Rosenberg v. Western Mercantile Co., 2 Cal. I. A. C. Dec. 673. 26 Goering v. Brooklyn Mining Co., 2 Cal. I. A. C. Dec. 141.

27 (Wk. Comp. Act Wash. § 17) Opinions Atty. Gen. Sept. 17, 1913.

28 (Wk. Comp. Act Wash. § 4, class 20) Rulings Wash. Indus. Ins. Com. 1915, p. 12.

29 Ryan v. Metropolitan Chair Co., 1 Conn. Comp. Dec. 37.

32

" 30

his employment away from the plant of his employer." It has been said that, in determining who is an "employé" within the meaning of that Act, only decisions under it or similar Acts based on the same identical principles can be recognized as controlling, influential, or even interesting.31 The applicability of the statutory enumeration or definitions of employments deemed entitled to protection is not to be determined narrowly, but rather in a reasonable and common-sense manner, so as to render the Act valid and operative. If an employé is hired for work exclusively and predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot be fairly made to depend on whether he was at the moment of injury engaged in an act clearly constituting the direct doing of work within the Act.33 Thus a painter's right to compensation for injuries sustained in his daily trade does not depend on a showing that he was at the moment applying a brush, mixing paints, or mounting a scaffold. If an employé's duties are exclusively or predominantly within an enumerated employment or employments, or he is injured in doing work fairly within the scope of the ordinary fulfillment of such duties, his injury is compensable, though the particular act he was doing at the time of injury would not ordinarily be described as the doing of work enumerated in the statute.35 To construe the statute otherwise would defeat its pur

34

30 (Workmen's Compensation Law, § 3) Newman v. Newman, 169 App. Div. 745, 155 N. Y. Supp. 665; Matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158; In re State Workmen's Compensation Comm'n, Dale v. Saunders Bros., 218 N. Y. 59, 112 N. E. 571, affirming 171 App. Div. 528, 157 N. Y. Supp. 1062.

31 In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 596.

22 Gleisner v. Gross & Herbener, 170 App. Div. 37, 155 N. Y. Supp. 946.

23 Id.

34 Id.

35 Id.

One does not cease to be an employé because at certain instants of time he is not actually engaged in work. Scott v. Payne Bros., Inc., S5 N. J. Law, 446, 89 Atl. 927.

pose, and make its operation and benefits depend on harsh, arbitrary, and unworkable distinctions, which would inevitably defeat its practical workings. 36 Where, however, an employé's ordinary duties and customary scope of activity do not come exclusively or predominantly within the enumerated employments, and he only casually and incidentally does work falling within that category, his right to remuneration depends upon whether he sustained injury while actually and momentarily doing work named in the statute. Where it appears that the employé was not so engaged when he met with injury, he is not entitled to compensation, even though he at times did work embraced within the Act. That the workman procured his employment by means of a false written statement, in violation of a penal statute, did not prevent him from being an "employé," or the one employing him from being his employer.38 The question whether the relation of employer and employé existed is one of law, where the facts are conceded.39

37

To constitute one an employé, it is essential that there be a contract of service,4° an implied consideration of which is usually provision for compensation for injury to him arising in the course of

36 Gleisner v. Gross & Herbener, supra.

37 Matter of McQueeney v. Sutphen & Meyer, 167 App. Div. 528, 153 N. Y. Supp. 554; Matter of Kohler v. Frohmann, 167 App. Div. 533, 153 N. Y. Supp. 559; Smith v. Price, 168 App. Div. 421, 153 N. Y. Supp. 221; Matter of Parsons v. Delaware & Hudson Co., 167 App. Div. 536, 153 N. Y. Supp. 179; Gleisner v. Gross & Herbener, supra.

38 (Laws 1913, c. 816, Consol. Laws, c. 67, §§ 3, 4) Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. Supp. 117.

39 Id.

40 Hillestad v. Indus. Ins. Com., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789, 6 N. C. C. A. 763; Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 18.

Where a county gives a contract for the construction of roads to a private party, the county is not liable to the employés of the contractor for injuries