ARTICLE C.-SPECIFIC PROVISIONS OF THE VARIOUS STATUTES.. 146 1. Who is an 66 SERVANT IS CREATED employé " or a workman" within the meaning of the compensation acts. Various questions have arisen between partners, shareworkers, contractors, sub-contractors and others as to when a man is a "workman," or an "employé," so as to be entitled to compensation in case of injury. The old decisions on the question of when the relation of master and servant exists are, of course, to a certain extent, applicable here. Whenever other than strictly workmen's compensation cases are cited in this chapter the letters Who is an “employé” or a “workman," etc. (E. L.) appear directly before the title to the case so there may be no confusion in applying the principles which they enunciate.1 Of course it does not necessarily follow that the compensation principle applies to all cases where the relation of master and servant, or employer and employé, exists. Some of the acts specifically exclude certain occupations such for example as farm laborers, domestic servants and casual employés. Others apply to certain hazardous occupations only leaving all others under the old employers' liability laws. The particular statute under which the question arises must first be consulted. There is a distinction between the word "workman" as used in the British Act and the word "employé" usually found in the statutes of the American States. Thus it is held in England that a certified manager of a colliery receiving £400 a year with house rent free, who does no manual labor, is not a workman. Simpson v. Ebbw-Vale Steel, Iron & Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101. The same rule was applied as to a chemist whose duties were largely the making of laboratory experiments and who, in connection therewith, did considerable manual labor. Bagnall v. Levinstein (1906), 96 L. T. 184; 9 W. C. C. 100. A law writer was injured in the street during the hour allowed for his lunch. It was held that a law writer was within the Act, but that the luncheon hour is not part of his period of employment, and therefore compensation was refused. McKrill v. Howard & Jones (1909), 2 B. W. C. C. 460. It has also been held that a professional football player was a workman within the meaning of § 13 of the British Act. Walker v. Crystal Palace Football Club (1909), 101 L. T. 645; 3 B. W. C. C. 53. The British Act, however, is limited to employés who are earning less than a specified sum, unless they are en 1 1Only the more recent illustrative employers' liability cases have been cited in this connection. gaged in manual labor, in which latter event the amount of their wages is of no importance. See § XIII. Such limitations are not found in many of the workmen's compensation statutes of the various American States. Usually the word "employé" is used, and the exceptions relate to those engaged in particular employments, without regard to the sum received as wages or salary. No distinction is made between those engaged in manual and other kinds of labor. Thus in New York it is held that the superintendent of a knitting mill is an "employé" within the meaning of the Employers' Liability Act, since it does not assume to make any distinction between different classes of employés. (E. L.) Aken v. Barnet & Aufsesser Knitting Co., 118 App. Div. 463; 103 Supp. 1078. Naturally in the great majority of cases the relation of master and servant is created by direct contract of employment, either oral or written, express or implied, and no question is raised as to the existence of the relation when an accident happens. In our complex industrial life, however, numerous contractors and sub-contractors are employed. In the attempt to shift the burden of liability for heavy damages in consequence of personal injuries caused by negligence the courts have been called upon to determine the circumstances under which workmen may be said to be the employés of particular employers, when two or more employers, between whom contractual relations exist, are interested in the same enterprise. Not infrequently a series of contracts and sub-contracts have been entered into for the purpose of escaping or evading this very liability. Statutes have been passed to circumvent this practice, whereby principals have been held responsible for injuries to workmen of contractors and sub-contractors under certain circumstances. In many of the compensation acts this principle has been adopted, as will be seen from consulting Chapter VII, of this volume. The present article, however, treats of those cases where the question is open to Members of employer's family debate whether or not the relation of master and servant exists under various sets of circumstances not governed by specific statutory provisions. In order to hold the master liable for personal injuries caused by negligence, it must appear that the servant was at the time of the injury engaged in the service of the master or going to or from such service. (E. L.) Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374. It is sufficient to create the relation of master and servant if, at the time of the accident, the employé was in charge of the master's property by his assent and authority engaged in his business and under his control; it not being necessary that he be in his general employment or under a special contract, or that the servant received remuneration directly from his employer. (E. L.) Rhatigan v. Brooklyn Union Gas Co., 136 App. Div. 727; 121 Supp. 481; (E. L.) Kimball v. Cushman, 103 Mass. 194; (E. L.) Wood v. Cobb, 3 Allen, 58. The test by which to determine whether a person is acting as a servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person's orders and control and was liable to be discharged for disobedience of orders or misconduct. (E. L.) United States Board & Paper Co. v. Landers, 93 N. E. Rep. 232; 47 Ind. App. 315. When the employment is covered by a written contract, the construction of such contract and the question as to what constitutes an independent employment thereunder is a question of law for the court. (E. L.) Singer Mfg. Co. v. Rahn, 132 U. S. 518. 2. Members of employer's family. A son, employed by his father, lived with him and paid him board and lodging. He was injured while absent for several weeks on his father's business. It was held that he was a member of his employer's family, dwelling in his house, and was therefore not a workman within the Act. |