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of his service and a servant as to part. Thus, one who is injured while operating a launch to bring supplies to a dredge for his em

furnish another team belonging to himself, with a driver hired and paid for by himself, to work for the employer at $6 per day for the use of the team and driver; the view of the Commission being that, while it is true that the injured employé may have been an independent contractor as to the second team provided by him for defendants' work, he is at the same time an employé under the terms of the first contract made between himself and his employer. Stevans v. Tittle, 2 Cal. I. A. C. Dec. 146.

Where a soliciting agent, provided with a horse and wagon by a dealer in furnishing goods, took goods for distribution and sale within territory assigned to him and was paid for his services on a commission basis, it appearing that he and other such agents returned all unsold goods and were credited with the same list price which they had been charged up with when they took the goods out, and that each sale, after being verified by a collector of the firm, was taken over, and any possible loss assumed by the firm, and all sales were made in the name of the firm, such agent was an employé, and not an independent contractor. Rosenberg v. Western Mercantile Co., 2 Cal. I. A. C. Dec. 673. Payment by commission is equivalent to payment of wages, provided there is a contract of hire. There is no distinction between the relations existing between applicant and defendant under their contract and that ordinarily existing between a commercial traveler, who is paid a commission on his sales in lieu of wages, and his employer. In both instances the salesmen are expected to devote their whole time to the service of the employer. Book agents or canvassers, on the other hand, are not as a rule called upon to give their whole time to the service, but may devote as much or as little to it as they please. It follows that where the applicant entered contracted to "devote his whole time and energy to selling the lots" of defendant, and not to sell for any other individual, firm, or corporation, and did so devote his time for two years preceding the accident arising during such service, the basis of his pay being entirely commissions, which were certain percentages of the payments made by the purchasers, out of which the agent must pay his own traveling and living expenses, an injury sustained by the overturning of the automobile of applicant, while he was proceeding as directed by the defendant to a new field of operations, was compensable, the applicant being an employé and not an independent contractor. Skidmore v. Brown, 2 Cal. I. A. C. Dec. 556. Where a canvasser was given by a written contract exclusive selling territory and commissions for the sale of heaters for installation, and was expected to and did give the whole of his time to the business, and was under considerable control as to reporting progress and sales, and the heaters were installed by the selling firm, and, 95 In re Powley, 169 App. Div. 170, 154 N. Y. Supp. 426.

ployer was an employé and not an independent contractor, though he was an independent contractor for dredging operations." But

unlike another canvasser under contract with the firm, he was not required to guarantee the purchase price of heaters sold, he was an employé, and not an independent contractor. Horgan v. Kinney, 2 Cal. I. A. C. Dec. 1006. Where a bowling alley has the pins set up in its various alleys by boys, working irregularly as they may happen to be present and needed, and receiving as pay 25 per cent. of the sum collected from the games which they respectively serve, the boys, while setting pins, are employés, and not contractors. Weaver v. Eyster & Stone, 1 Cal. I. A. C. Dec. 563.

93 The fact that one is a piece worker does not necessarily determine his status. Travis v. Hobbs, Wall & Co., 2 Cal. I. A. C. Dec. 506. Where a farm hand, though called on occasionally to do various jobs, for which he is paid, is occupied mainly with cutting wood on the farm, and is paid therefor by the cord, this mode of payment being agreed upon because the owner cannot be present to supervise, and the farm hand works steadily ten hours a day, and also performs other volunteer services and lives on the farm, the fact that he is paid by piece work will not make him an independent contractor. Fisher v. Dunshee, 2 Cal. I. A. C. Dec. 849. Where a lather, under contract of hire to lath a house at a certain price per thousand, subject, however, to the direction and control of the subcontractor, and liable to discharge at any time by him, he was an employé, and not an independent contractor. Stonaker v. Jones & Delaney, 2 Cal. I. A. C. Dec. 834. A woodworker was engaged to cut out pieces of wood and put them together into lamps for 35 cents per lamp, and in order to expedite work was allowed to hire two helpers at a weekly rate of pay fixed by the defendant, but paid out of the 35 cents, money therefor being advanced by defendant. All machines and material were furnished by defendant. The woodworker chose his own hours, but was forbidden using machines outside working hours. He did not account for money received for payment of helpers. The Commission held that he was an employé, and not an independent contractor. Shaffer v. Southern California Hardwood Mfg. Co., 2 Cal. I. A. C. Dec. 891. Where a woodcutter is engaged by the agent of a subcontractor to fell trees and cut cordwood on the premises of the principal, to be paid by the cord, to furnish his own tools, and within reasonable limits to be master of his own hours and time, and is paid by check from the subcontractor, and sustains an injury resulting in his death, the woodcutter is an employé of the subcontractor, not an independent contractor. Lachuga v. Kataoka, 2 Cal. I. A. C. Dec. 766. The fact that applicant was paid for his work at the rate of 18 cents for every tie cut by him was not by itself conclusive that he was an independent contractor; such mode of payment being entirely consistent 96 In re Powley, 169 App. Div. 170, 154 N. Y. Supp. 426.

where the owner of a dredge, after leasing same to an independent contractor, was running it, he was not an employé of such contractor within the Workmen's Compensation Law.97

A physician employed on salary by another physician, who is under contract to supply medical services to incapacitated employés of a manufacturing concern, is an employé of the latter and not an independent contractor, although allowed to follow private practice when his services are not required on contract cases.

98

Where a painter, who is killed, while working without helpers, by falling from a scaffold, has previously done work for the employer and been paid a lump sum for doing painting on the employer's plant, under a contract specifying the kind of work and the

with his being an employé on a piece work basis, as well as with his being an independent contractor. Rose v. Pickrell, 1 Cal. I. A. C. Dec. 85. An employé who claimed that he was paid $3 per day, while his employer claimed that he had contracted to dig a sewer at 10 cents per foot, was held to be an employé, and not an independent contractor. Farley v. Koch, 2 Cal. I. A. C. Dec. 986.

24 Where an aviator contracted with a moving picture concern to assist in the making of films with his aeroplane at $5 per day and $75 for the first flight, and $50 each subsequent flight, he was an employé, and not an independent contractor. Stites v. Universal Film Mfg. Co., 2 Cal. I. A. C. Dec. 670. Where an automobile mechanic was engaged to overhaul and repair an automobile on the premises of the employer, and to be paid 40 cents an hour for all time put in, though he supplied at retail prices parts which he had purchased at dealers' prices, he was an employé, and not an independent contractor. Detwiler v. Kettering, 2 Cal. I. A. C. Dec. 810. A chair man in an exposition relied for his earnings on casual patrons, and was furnished his equipment by the chair concessionaire, and required to conform to regulations as to the time of taking out and returning chairs and as to the order in which patrons should employ chair men. He was not allowed to sublet his chair, and was required to charge only a definite price and to pay in advance daily a specific rental for his chair, with permission to retain all earnings without an accounting, this method of remuneration being adopted as the most practical for the concessionaire. The Commission held that he was an employé, and not an independent contractor. Leon v. Exposition Wheel Chair Co., 2 Cal. I. A. C. Dec. 845.

7 In re Powley, 169 App. Div. 170, 154 N. Y. Supp. 426.

98 Getzlaff v. Enloe, 3 Cal. I. A. C. Dec. 18.

material to be used, he is an employé, rather than an independent contractor," though his contract is in writing, and he agreed to do the work satisfactorily, and to do it over if it did not endure a specified length of time.1

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In order that one may come within the federal Act, he must be a "person employed by the United States," and not a mere contractor. A plate printer in the Bureau of Engraving and Printing paid by the piece, a contract tie maker, paid by the piece, who boards himself and hires and pays his own help, and the owner of a power boat chartered to the government and operated by the owner in its service, are contractors, and not employés of the United States. A workman employed by a government contractor is not employed by the government." On the other hand, one employed and carried on the pay rolls of the reclamation service is employed by the government when performing work being done by a contractor for the government, if directed to do so by his superior. It has been determined that a workman employed in the Forest Service, designated with others to perform certain work which the government was performing under agreement with county supervisors, the latter bearing the expense, was employed by the United States and entitled to compensation for injuries sustained while so employed.'

99 (Wk. Comp. Law as amended in 1914 [Laws 1914, c. 41] § 2, group 42) In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598.

1 Id.

2 In re Clark, Op. Sol. Dept. of L. 49.

8 In re Contractors or Jobbers at Neopit Indian Sawmill, April 8, 1915. Op. Sol. Dept. of L. p. 58.

In re Hanson, Op. Sol. Dept. of L. 51.
In re Lipscomb, Op. Sol. Dept. of L. 50.

• In re Crawford, Op. Sol. Dept. of L. 56.
In re Kenny, Op. Sol. Dept. of L. 57.

§ 68. Employé of independent contractor

Under the New Jersey Act, the employer is liable, for injury to an employé of an independent contractor from defects in ways, works, machinery, or plant, only when he furnishes same, and not when they are furnished by the independent contractor, over whose negligent conduct in not remedying defects the employer has no control.s The employé of an independent contractor, who is a subscriber, under the Massachusetts Act, has the same rights. against the owner's insurer, as though it had directly insured the employer. Where a teamster was sent by his employers to get a load of concrete sills from an inclosure belonging to certain building contractors, at their request, and on arriving was assisted. by a son of one of the contractors, who selected the sills to be taken, and was injured by the falling of one of the sills while it was being carried to the wagon, he was not an employé of the contractors, nor was he engaged in the usual course of their business as contractors.10 Where the inventor of a plant for pumping oil was employed by a company selling the machine to superintend and control the installation of a plant upon the premises of the subscriber, his employers being independent contractors with respect to the subscriber, the subscriber's insurer could not be held liable for the death by accident of the inventor while so employed; he being in no sense an employé of the subscriber.11

§ 69. Officers

Since public officers are not entitled to compensation as employés, it becomes important to distinguish between officers and

8 Kennedy v. David Kaufman & Sons Co. (N. J. Sup.) 91 Atl. 99. As to who are independent contractors, see § 66, ante.

Wk. Comp. Act, pt. 3, § 17.

10 In re Comerford, In re Contractors' Mut. Liab. Ins. Co. (Mass.) 113 N. E. 460.

11 Western Indemnity Co. v. State Indus. Acc. Com. (Cal.) 158 Pac. 1033 (annulling award of commission).

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