his employment and not through his intentional or willful misconduct," and that the services be not merely voluntary. The requisite "contract of service" is not a contract "for" services. The former relationship constitutes one an employé, and brings him within.

42

sustained, unless there is a contract of hire between the county and the workmen. Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 9, p. 23.

A boy, injured while sawing up lumber to be used for the University Extension department and paid for by it, was not an employé of that department, where it was not a party to the hiring of the boy and had nothing to do with it. Schmitz v. City of Appleton, Bul. Wis. Indus. Com. 1912-13, p. 31. Eristence of contract.-Where a quarryman received beer or supper from a neighboring farmer in return for helping in the evening with the haymaking, there was no contract of service, or at least no legal contract. Kemp v Lewis (1914) 7 B. W. C. C. 422, C. A. But where a casual laborer, hired by a farmer to help with threshing, was injured while helping the driver of the machine, who had been hired with the machine, in accordance with custom, to remove the machine from the farm, he was injured in the farmer's employ. Newson v. Burstall (1915) S B. W. C. C. 21, C. A. Connecticut. Where a small boy was in the habit of daily assisting a grocer's employé to deliver packages, going with the wagon and taking the packages into the house, while the driver remained in the wagon, and receiving his reward in the way of candy and fruit from the store, there was no contract of employment, and he was not an employé within the Act. Taylor v. New York Supply Co., 1 Conn. Comp. Dec. 182..

41 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.

42 That the contractee, a carpenter by trade, was injured while voluntarily aiding the contractor, did not make him an employé of the contractor. Artenstein v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases 699 (Decision of Com. of Arb.).

Whether services merely voluntary.-Where a carpenter voluntarily works on a church building, which is being constructed, in the mere hope that he may be later hired if seen on the job, and he is permitted so to work by a member of the church, he was not in the employ of the owners or builders of the church, in the absence of any ratification by them. Steiman v. Sfard, 2 Cal. I. A. C. Dec. 1018. But where the members of a partnership enter into a contract with a person, by which the latter is to install certain machinery at his own expense, and one of the partners living at the place of business aids in unloading a wagon containing machinery, billed to the contractor, and is injured by an accident while so doing, such evidence is insufficient to show that the partner was at the time of the accident an employé of the contractor. Anderson v. Perew, 2 Cal. I. A. C. Dec. (Bulletins 1915) 736.

HON.COMP.-12

the Act, while the latter relationship makes one an independent contractor-that is, a self-serving employé-and excludes him from the Act. The contract of service need not be express, but may be implied, as where a substitute is engaged by an employé in accordance with a well-established custom, or it may arise from the ratification of an unauthorized employment of a workman by a subordinate. It is immaterial whether the employment was under a contract concededly valid as to both parties, or under a con

46

43 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 18.

44 Where the applicant had on several occasions been employed by the hour by defendant, and on the day of the accident was asked by the driver of one of the defendant's auto trucks to assist him, the driver telephoning to defendant's office for permission to employ the applicant, and the applicant standing by and understanding that the employment was authorized, there was at least an implied employment by defendant. Gallagher v. Federal Transfer Co., 1 Cal. I. A. C. Dec. 39. Where a building manager employs A. to reshingle a building by the day, with permission to hire B. to help him, and A. finds that he cannot get B. to do the work, and employs C. without the consent of the employer, C. is in the employ of the manager. Petersen v. Pellasco, 2 Cal. I. A. C. Dec. (Bulletins 1915) 199.

Where the claimant, employed by the owner of the premises on which the defendant was having its work done as a general handyman, had been discharged by the owner, but continued to work for the defendant at the request of one of its employés, for whom he had done work with the permission of the owner while in his employ, and was injured five days after his former employment had ceased, he was an employé of the defendant. Galelli v. Magnesite Products Co., The Bulletin, N. Y., vol. 1, No. 6, p. 12. 45 Where it is an established custom for a waiter to get a substitute occasionally, providing he is acceptable to the steward, and a substitute is injured while at work, without the employer's knowledge or there being any express contract of employment, the substitute is impliedly an employé of such employer. Clark v. Morrison & Burns, 2 Cal. I. A. C. Dec. 90.

46 Where a railroad company had two roundhouse men on duty at night, and, one of them quitting, the other hired claimant, telling him the next morning that he could not work any longer unless hired by a certain secretary, and the company paid him the regular wages for his work and $25 in compromise adjustment for an injury received during the night, such acts constituted a ratification of the employment without authority, and made the workman an employé of the company. McCutcheon v. Marinette, Tomahawk & Western R. R. Co., Rep. Wis. Indus. Com. 1914-15, p. 13.

tract voidable at the election of the employer, or whether the liability of the employer for wages was fixed or determinable under quantum meruit. A contract of service does not arise from the existence of the relation of landlord and tenant, carrier and passenger, bailor and bailee,5° from the rendition of professional services,31 from a partnership relation,52 from the performance of man

51

49

47 Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. Supp. 117.

48 Where a steel tester making £2 a week obtained an agreement with his employers which allowed him to live in a cottage near by without paying rent, in return for which he saw to the cleaning of the offices (his daughters doing the work), and was killed by gas which escaped from the offices into his bedroom, there was no contract of service. Wray v. Taylor Bros. & Co., Ltd. (1913) 6 B. W. C. C. 529, C. A.

49 Where one seeking employment visited defendant's office and was directed by the person in charge thereof to go to defendant's camp, and where he did so, riding on defendant's logging train, and was injured before leaving the vicinity of the train, without having done any work or received any pay from the defendant, the relation between the parties was that of passenger and carrier, and not employer and employé. Susznik v. Alger Logging Co., 76 Or. 189, 147 Pac. 922.

50 The fact that the driver of a taxicab was allowed to keep 75 per cent. of his receipts, minus the price of the petrol he used, and that he was very little or not at all under the control of the owners, although he wore a uniform they furnished, and although they used the words "servant" and "dismissal" in their posted notices, was held sufficient evidence that he was not a workman, but a bailee. Smith v. General Motor Cab Co., Ltd. (1911) A. C. 188. The fact that the driver of a taxicab was allowed to retain 25 per cent. of his day's receipts, minus the value of the petrol he had used, was no evidence of a contract of service, the relation probably being one of bailment. Doggett v. Waterloo Taxicab Co., Ltd. (1910) 3 B. W. C. C. 371, C. A. 51 There was no contract of service where a laundry girl taught music to a neighbor's children, for which she received pay (Simmons v. Heath Laundry Co. [1910] 3 B. W. C. C. 200); where for compensation a lecturer was explaining the different parts of an airship (Waites v. Franco-British Exhibition, Inc. [1910] 2 B. W. C. C. 199); or where a board of guardians employed a doctor (Murphy v. Enniscorthy Board of Guardians [1910] 2 B. W. C. C. 291, C. A.); but a man playing professional football for his club was under a contract of service (Walker v. Crystal Palace Football Club, Ltd. [1910] 3 B. W. C. C. 51, C. A.). Where the employer directs and controls the 52 See note 52 on following page.

ual labor without subjection to the alleged employer's control,5 or where one sails on a ship on the sharing system without being subject to the owner's control, or where a workman's son is engaged

54

route of a vaudeville performer, time of performance, and manner of putting on the act, the performer is under contract of service. Her vocation is not to be classed with such professional services as are rendered by lawyers and physicians. Howard v. Republic Theater, 2 Cal. I. A. C. Dec. (Bulletins 1915) 514.

52 A member of a partnership, who performs services for the partnership, for which he receives money designated as "wages," is not an employé of the partnership. In re C. E. Cooper, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 180. Where the owner of several teams agrees with applicant that he may take a team and find work for it with himself as driver, the team to be fed by the owner, and the earnings and losses to be divided equally, the parties are copartners, not employer and employé. Sayers v. Girard, 1 Cal. I. A. C. Dec. 352.

In Ferranti v. Kennedy, 1 Conn. Comp. Dec. 196, where a mason and his helper, working together, agreed to do a certain piece of work for $75, and between themselves agreed that each should draw union wages according to his trade, and that the remainder should be divided equally, they were held to be partners, and there was no contract of employment.

A partner, although he worked as a foreman and received a compensation for his work, was not a workman within the Act of 1897. Ellis v. Ellis & Co. (1905) 7 W. C. C. 97 C. A. (Act of 1897). Where a trustee, who was closing up a business, hired one of the former partners to work with him for half an hour each day, and promised to give him a part of any sum which might be left of the business, but exercised no control of him, there was no contract of service. Pears v. Gibbons (Nelson, third party), (1913) 6 B. W. C. C. 722, C. A. But where a man, who had been employed by another workman in charge of a boat which made a business of carrying cargo from fishing vessels to the ports, and who like the other received as pay a third of the gross earnings, and who was not liable for losses, but was compelled to obey the orders of the owners, was drowned, it was held that he was a workman. Jamieson v. Clark (1910) 2 B. W. C. C. 228, Ct. of Sess. Nor does the owning of shares in the vessel keep the master of the ship from being a workman, a shareholder not being a partner. Carswell v. Sharpe et al. (1910) 3 B. W. C. C. 552, Ct. of Sess.

53 See § 66, post.

54 There was no contract of service with the owner, where the master employed and paid the crew, and carried any cargoes that he pleased, receiving as his compensation two-thirds of the gross earnings (Boon v. Quance [No. 1], [1910] 3 B. W. C. C. 106, C. A.); where a vessel's captain was paid half the

55

by the workman to help him in his own or his employer's business. Whether a contract of service arises from the performance of work given out of charity depends on the circumstances of the particular case.57

gross receipts after port charges had been paid, and had charge of the hiring and paying of the crew, and was free to trade with any ports he chose (Hughes v. Postlethwaite [1911] 4 B. W. C. C. 105, C. A.); where, in a case involving the drowning of the master of a ship, it appeared that the ship's captain paid all disbursements and expenses, receiving for it two-thirds of the gross receipts (Jones v. Ship Alice and Eliza [Owners of], [1910] 3 B. W. C. C. 495, C. A.); or where a mate of a ship, which was sailed on the sharing system, was engaged by the captain and promised as pay a part of the freight (Hoare v. Barge Cecil Rhodes [Owners of], [1912] 5 B. W. C. C. 49, C. A.). But there was such contract of service with the owner, where a man, who was employed as captain of a vessel to use it "on the best paying trade for the benefit of all concerned," employed and paid the crew of the ship, receiving for the purpose and his own compensation two-thirds of the gross receipts (Kelly v. S. S. Miss Evans [Owners of], [1913] 6 B. W. C. C. 916, C. A.); where the owner fixed the route, freight, and destination, although the captain, the person injured, received a share of the profits as remuneration, and out of it paid the wages of the mate and a part of those of another hand (Smith v. Horlock [1913] 6 B. W. C. C. 638, C. A.); and where the mate of a ship was drowned at sea, and it was alleged that the vessel sailed on the sharing system, but the only facts proven were that defendants owned the ship on which the man was mate (Victoria [Owners of Ship] v. Barlow [1912] 5 B. W. C. C. 570, C. A.).

55 A son, who worked for his father and lived with him, although paying for board and lodging, and who was injured on a journey he was making for his father's business, was not a workman. McDougall v. McDougall (1911) 4 B. W. C. C. 373, Ct. of Sess.

56 A timber merchant, who had contracted with a workman to fell some timber he had bought and agreed to carry away, was not liable as a principal for an injury to the workman's son, engaged by the workman to help in the work, since the son was not a "workman." Marks v. Carne (1910) 2 B. W. C. C. 186, C. A.

57 A man working for the Central (Unemployed) Body of London under the Unemployed Workmen Act of 1905 is under a contract of service, and upon injury by accident is entitled to recover. Porton v. Central (Unemployed) Body for London (1910) 2 B. W. C. C. 296, C. A. A workman has been held to be under a contract of service while doing work which he obtained through a distress committee serving under the Unemployed Workmen Act of 1905.