in a misscarriage of justice or which constitute a substantial violation of any constitutional or statutory right of the defendant.

For the reasons stated, the judgment of the court below is affirmed. All the Justices concur, except Turner, J., who was absent and not participating.

1. MASTER AND SERVANT-RELATION-INDEPENDENT CONTRACTOR.

Where a person lets out work to another, and the contractee reserves the control over the work of workmen, the relation of contractor and contractee exists, and not that of master and servant.

(For other cases, see Master and Servant, Dec. Dig. § 367.).

COMPENSATION

2. MASTER AND SERVANT-WORKMEN'S ACT-RIGHT TO COMPENSATION-"INDEPENDENT CONTRACTOR."

One contracting to transfer freight between cars at stipulated price and having control of the method of work and employment and payment of necessary labor, is not an employee, but an "independent contractor" whose widow is not entitled to compensation under Workmen's Compensation Act for his death in the course of such work.

(For other cases, see Master and Seravnt, Dec. Dig. § 367.)

(For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.)

Appeal from Court of Common Pleas, Lycoming County.

Jennie V. Smith appeals from the Workmen's Compensation Board's dismissal of appeal from the report of a referee. From a judgment reversing the decision of the Board, the State Workmen's Insurance Fund appeals. Reversed.

JJ.

Argued before Brown, C. J., and Potter, Stewart, Frazer, and Walling,

Samuel I Spyker, of Huntingdon, and Francis H. Bohlen, of Philadelphia, for appellant.

Otto G. Kaupp, of Williamsport, for appellee.

STEWART, J. The complainant is the widow of John V. Smith, who died at Masten, in this state, the place of his residence, on the 30th of September, 1916, as the result of an accident occurring in the course of his employment a few days prior. At the time of the accident the husband was engaged in transferring freight, including raw hides, in

* Decision rendered, Oct. 7, 1918. 105 Atl. Rep. 90.

carlroad lots, from standard gauge cars belonging to the Susquehanna &

New

to

York Railroad, over whose lines such freight had been transported, narrow gauge cars for transshipment over a narrow gauge logging road operated by Charles W. Sones, to a station on said road known as Hillsgrove. The accident he sustained, resulting in his death, was the introduction into his system through a superficial external excoriation on his person of anthrax germs latent in the hides handled. The answer filed to the complaint denied that anthrax is an injury as defined in the Workmen's Compensation Act of 1915 Act June 2, 1915 [P. L. 736])—a question which, as we view the case, calls for no discussion here, and we therefore omit any discussion of it-and further, alleged that the deceased husband was not the employee of the party complained against, C. W. Sones, the party owning and operating the narrow gauge road at the time the infection was contracted; the allegation in support of this proposition being that the husband was an independent contractor for the transfer of freight between the broad and narrow gauge roads at the time of the occurrence. The complaint and answer were referred. In the testimony taken before the referee it was developed that the employment of the complainant's husband in the transferring of freight at Masten was the subject of a written contract between himself and C. W. Sones, and that this contract was governing at the time the injury was received. In a written communication signed by Sones addressed to John V. Smith, the husband, under date of 1st of June, 1913, this appears:

"This will confirm our understanding relative to transferring. Our understanding and agreement is that you are to transfer all inbound and outgoing freight in car lots at Masten, with the exception of lumber, from narrow gauge to standard gauge and from standard gauge to narrow gauge cars, all freight received there, at the following prices, namely:

"Bituminous coal at five cents per ton; leather, hides, and oats at twenty-five cents per ton; hair in bales and bark in bags at fifteen cents per ton; boxes and bales at eight cents per ton; empty carboys and empty barrels, one cent each. Lime and Fleshings, 25c.

"Our understanding is that this transferring is to be done in a good and workmanlike manner; leather cars to be loaded in accordance with instructions from the Elk Tanning Company.

"You are to load or unload each standard gauge car within the time limit in order that no demurrage charges may accrue; you are to be responsible for any breakage that may occur while transferring.

"Settlement to be made in cash, on or about the 15th of each month, for the amount transferred during the preceding calendar month. "This contract to be in full force and effect unless revoked by either party by thirty days' notice in writing.

"Your acceptance of this will be sufficient contract betweens us. [Signed] C. W. Sones."

Appended to this communication is the following acceptance addressed to said Sones:

"The above is in accordance with understanding we have had in regard to transferring at Masten. I hereby accept the terms and conditions as set forth.

[Signed] John V. Smith."

The finding of the referee was:

"That under and by virtue of the above contract the deceased at various times employed divers persons or laborers who assisted him in the work he had contracted to do in about the said transfer, hiring and discharging such employees, and paying them such wage as might be agreed upon between him and them; that the work of transferring was solely under the charge and care of the said deceased, who was responsible to the defendant for all breakage that might occur in the transferring, and for the demurrage that might arise by reason of any

delay in loading or unloading from the standard cars; and that he was paid therefor at the rates and in the manner set forth in the abovementioned contract; his time, manner of working, the number and control of the men being matters entirely within the control of the said John V. Smith."

His legal conclusion was:

"That claimant has not brought herself within the purview of section 307 of the Workmen's Compensation Act of June 2, 1915 (P .L. 736), and her claim must therefore be disallowed, and her claim petition dismissed."

[1, 2] From this disallowance of the claim by the referee an appeal was taken to the Compensation Board, where, after a hearing, the findings and conclusions of the referee were sustained and the appeal dismissed. An appeal followed to the court of common pleas of Lycoming county, two errors being therein assigned, both of law, one directed to the ruling of the referee, sustained by the board, adjudging the deceased husband to have been an independent contractor when his injury for which compensation is provided by the Workmen's Compensation Act. Both assignments were sustained. The decision of the board was reversed, and the compensation claimed was accordingly awarded. From the judgment so entered we have this appeal by the State Workmen's Insurance Fund. The questions raised are the same as were before the court below and there elaborately argued. For the reason heretofore stated, we shall confine the discussion to the single question raised by the first assignment, namely, whether the relation of employer and employee, or, in other words, master and servant, existed between these parties when the injury, the subject of the complaint, was sustained. Except as such relation existed the case admittedly does not fall within the protection of the statute. Inasmuch as we are of one mind that the relation existing between the parties was not that of employer and employee, but that of contractor and contractee, the other question, as to whether the injury complained of is such as the statute contemplates and falls within its provisions, becomes purely academic, and an affirmative conclusion with respect to it would be without result. We therefore dismiss it from consideration.

The remaining question admits of but little discussion. The nature and character of employment of John V. Smith, the claimant's husband, are fixed by the terms of the contract that we have above recited between him and the manager, C. W. Sones. This contract is entirely intelligible, covering the whole case to the minutest detail, omitting nothing that is at all pertinent or that would be helpful to its understanding or application. The chief characteristics of the husband's employment are succinctly asserted in the referee's finding above given. These, together with one other which follows by necessary implication, namely, that by this contract the employer reserved to himself no right in connection with the work to be done, excepting the right to question the sufficiency of the result accomplished, measured by the requirements of the contract, state the whole case. Where this latter feature is of the substance of the contract, it has been uniformly held, and nowhere more strictly and explicitly than in our own state, that the one employed is an independent contractor. The general rule is thus stated: Where a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant (Wood on Master and Servant [2d Ed.] 593; 26 Cyc. 1084), or as stated by Sherman & Redfield on Neg. § 74:

"If one renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment."

It is only necessary to cite in further support from among our own cases Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699, Smith v. Simmons,

103 Pa. 32, 49 Am. Rep. 113, and McColligan v. Penna. R. R. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739.

We need not stop to consider any supposed distinction between the terms "employer and employee," and "master and servant." The act of June 2, 1915 (P. L. 736), under which the present claim is preferred, leaves us without occasion to do this, since by express terms the act, in section 103, declares the term "employer," as used in the act to be synonymous with "master," and in section 104 the term "employee" is to be regarded as synonymous with "servant." At the time of the passage of the act the words "master and servant" had a fixed and determined meaning, while the relation of master and servant, and the duties, obligations, and responsibilities arising thereunder, were clearly defined and established. It was in full view of this fact that, without attempting any distinction between the term "employee" and the term "servant," the act declares that for purposes within its provisions the two terms shall be regarded as synonymous. It results from what we have said that the case admits of no other conclusion than that the husband of the claimant was an independent contractor when he sustained the injury from which he died. The case therefore does not fall within the provisions of the Compensation Act of 1915.

The judgment is accordingly reversed.

COURT OF CIVIL APPEALS OF TEXAS.

BEAUMONT.

SHERRILL

V.

UNION LUMBER CO. (No. 390.)*

3. CONTRACTS – WORKMEN'S COMPENSATION ACT-CONTRACTS CONCERNING MEDICAL FEES-VALIDITY.

It was not against public policy, under the Workmen's Compensation Act, pt. 1, § 7 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246k), for an employer to agree to pay a doctor a salary, the employer to retain the medical fees allowed by the insurance association.

(For other cases, see Contracts, Dec. Dig. § 108[2].)

4. CONTRACTS-PARI

TION ACT.

DELICTO-WORKMEN'S COMPENSA- ·

If it is against public policy for an employer to contract to pay a doctor a salary and retain the medical fees allowed by the insurance association under Workmen's Compensation Act, pt. 1, § 7 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246k), physician entering into such a contract is in pari delicto and cannot sue the employer for such fees, having received and retained his salary, since he cannot affirm in part and repudiate in part. (For other cases, see Contracts, Dec. Dig. § 138[4].)

Appeal from District Court Liberty County; J. Llewellyn, Judge. Action by E. A. Sherrill against the Union Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

* Decision rendered, Nov. 29, 1918. 207 S. W. Rep. 149.

E. B. Pickett, Jr., of Liberty, for appellant.

Huggins & Kayser, of Houston, and H. E. Marshall, of Liberty, for appellee.

HIGHTOWER. JR., C. J. We adopt, as substantially correct, the following statement of the nature and result of this suit, as found in the brief of plaintiff in error, and which is concurred in by the defendant in error:

This suit was filed by Dr. E. A. Sherrill, as plaintiff, against the Union Lumber Company, as defendant, for the sum of $1,753, plaintiff claiming that such sum was due him for medical treatment rendered to injured employees of the defendant company during the first week of their injuries, in accordance with the Workmen's Compensation Act of this state. The defendant, Union Lumber Company, operated a sawmil at Milvid, in Liberty county, and on January 1, 1914, the plaintiff entered its employ as a physician for a salary of $150 per month; and in August, 1914, his salary was reduced to $101.50; and on May 1, 1915, another change was made with respect to the cash compensation plaintiff was to receive, and from the last-named date plaintiff was to receive as cash compensation all the medical fees that should be collected by the defendant company from its employees, less $40, it being agreed and understoood between plaintiff and defendant that the latter would collect from every married man on its pay roll $1.75, and from each single man 75 cents. It was alleged by the plaintiff that when he first entered the defendant's service, on January 1, 1914, and when later the amount of salary to be paid him was changed twice, as above stated, his contract and agreement with the defendant further was that said compensation above stated should not include the medical services or treatment which plaintiff might render to employees of defendant during their first week of injuries, and that it was also a part of the agreement and contract between plaintiff and defendant that plaintiff was to be allowed to engage in such other practice, including treatment of injured employees during their first week of injuries, as he might be called upon to perform, and which he would have to attend to; and that, for the medical services and attention which plaintiff might render to any injured employee of defendant during the first week of injury, he was to receive the fee paid therefor by the insurance company with which defendant might be carrying its risk, in accordance with the terms of the Workmen's Compensation Act of this state (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h to 5246zzzz). It was further alleged by plaintiff that, after he would render such medical services to injured employees during their first week of injuries, he would make up a monthly account or statement, and send same to the defendant for the purpose of having defendant collect the sums so due plaintiff from the insurance company which was liable for same, and then to place such collections to the credit of plaintiff on the ledger account which plaintiff had with defendant, and that while that course of dealing was followed the defendant did collect upon such account the sum of $1,753.50, which it refused to pay plaintiff.

The defendant, Union Lumber Company, answered by general denial, and also, by exception and defensive plea, interposed the two-year statute of limitation to all of the items contained in plaintiff's petition for services rendered by plaintiff two years prior to the filing of this suit. The defendant also reconvened against plaintiff for the sum of $429.66, claiming that amount as a balance against plaintiff on account of cash and certain articles of value which defendant had furnished to plaintiff while he was in its employ.

The case was tried with a jury, and was submitted upon one special issue, and, upon the jury's answer thereto, judgment was rendered that plaintiff should take nothing against defendant on his cause of action, and that the defendant should recover on its cross-action against plaintiff