82

writing that amounted to a misdemeanor, under the New York Penal Law, § 939, he was nevertheless an employee within the meaning of the Compensation Act;81 that the mere intention of an employee to quit his position after a certain period does not discontinue his status as an employee where he has not yet acted on his intent; that a substitute; employed and paid by a workman who is ill, is the employee of the sick workmen's employer;83 but it has been held otherwise where a substitute other than the one authorized was employed; or where one was employed unnecessarily and without authority; that a carpenter who voluntarily did work on a structure in the course of construction, in hope of later being employed, was not an employee and compensation was refused;" that a journeyman paper hanger hired by a foreman of a department store's wall paper department to go to the residence of purchasers to hang paper, was an employee of the department store, as it paid him for his work and retained authority to control the work;87 that an apprentice qualifying himself for the operation of an elevator was an employee,8 88 even though such apprentice may receive no pay for his services;89 that a piece worker over whose work the employer exercises general supervision is an employee; that a physician injured when returning from attend

81. Kenny v. Union Ry. Co., 166 App. Div. 497, 152 Supp. 117, 8 N. C. C A. 986; Galveston H. S. A. Ry. Co. v. Harris; 107, S. W. 108; 48 Tex. Civ, App. 434.

82. Goering v. The Brooklyn Mining Co., 2 Cal. Ind. Acc. Com. 124; 12 N. C. C. A. 245.

83.

Goshman v. Boggish, 1 Conn. Comp. Dec. 572; Campbell v. City of Los Angeles, 2 Cal. Ind. Acc. Com. 300; Clark v. Morrison and Burns, 2 Cal. Ind. Acc. Com. 110.

84. McClelland v. Todd, (1909), 43 Irish L. T. J. 75; 2 B. W. C. C. 472. 85. Corrigan v. Hunter, 122 S. W. 131, 139 Ky. 315.

86. Steiman v. Anshi Sfard, 2 Cal. Ind. Acc. Com. 944; Artenstein v. Employers Liability Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases 699. 87. In re McAllister 229 Mass. 193, 118 N. E. 326, 1 W C. L. J. 618. 88. Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995; Kilbury v. Vitch, 4 N. Y. St. Dep. Rep. 434.

89. Smith v. Western & A. R. Co., 67 S. E. 818; 134 Ga. 216. Contra: Turner v. S. S. Haulwen, 8 B. W. C. C. 242; Beatty v. San Diego Elec. Ry. Co., 5 Cal. Ind. Acc. Com. 241.

90. State ex rel. Va. & Rainy Lake Co. v. Dist. Ct. of St. Louis, Co., et.

94

92

ing to an incapacitated employee was entitled to compensation, as he attended to all compensation cases for his employer under general contract of hire to render such services; that the superintendent of a mill is an employee; that the general manager of a corporation is an employee;93 (though they are by some acts expressly excluded) that an expert mining engineer retained for consulting purposes is not an employee;95 that a small boy who receives candy and fruit for helping a delivery man for a grocery store, deliver goods, is not an employee,96 that book agents or canvassers, who may devote as much time or as little as they desire, to their work, are no employees; that a salesman working on a commission with a guaranteed net return is an employee; that a moving picture actor is an employee;99 that where a married woman cannot contract with her husband she can not contract to be his employee.1

al., 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076; Travis v Hobbs, Wall & Co., 2 Cal. Ind. Acc. Com. 506; Hale v. Johnson, 2 Cal. Ind. Acc. Com. 366; Ryan v. Tipperary North Riding County Council, 8 B. W. C. C. 415; Stonaker v. Jones & Delaney, 2 Cal. Ind. Acc. Com. 831; Malott v. Healey, 2 Cal. I. A. C. Dec. 103; In re Reinwold, 168 App. Div. 425; 153 Supp. 598; Missouri K. T. Ry. Co. v. Romans, 114 S. W. 157. (Tex. Civ. App...,) 91. Getzlaff v. Dr. N. T. Enloe, 3 Cal. Ind. Acc. Com. 18.

92. Aken v Barnet & Aufsesser Knitting Co., 118 App. Div. 463, 103 Supp. 1078; Miller's Mut. Casualty Co. v. Hoover et. al.,-Tex. Civ. App.-, 216 S. W. 475, 5 W. C. L. J. 325.

93.

451.

Head v. Fidelity and Deposit Co., 1 Cal. Ind. Acc. Com. (Part II)

116 N. E. 364, B 1

Tex. Civ.

94. Bowne v. S. W. Bowne Co., - N. Y. App. Div. W. C. L. J. 1183; Millers' Indemnity Underwriters v. Cook, App. 229 S. W. 598, Section 9 West Virginia Act Managers, Assistant. Managers, Assistant Superintendents excluded.

95. Report of Nevada Ind. Com. July 1, 1913 to Dec. 31, 1914, p. 26. 96. Taylor v. The New York Supply Co., 1 Conn. Comp. Dec. 182. Skidmore v. Brown, 2 Cal. Ind. Acc. Com. 493.

97. 98.

Gurnett v. L. P. Ross Co., 167 N. Y. Supp. 1102, 181 App. Div. 910. Brown v. Ind. Acc. Comm. 174 Cal. 457, 163 Pac. 664.

99.

Chandler et. al. v. J. L. Lasky Feature Play Co., 2 Cal. Ind. Acc. Com. 653, See also Stites v. Universal Film Co., 2 Cal. Ind. Acc. Comm. 653, 12 N. C. C. A. 1033.

1. In re Humphrey, 227 Mass. 166, 116 N. E. 412, 15 N. C. C. A. 458.

The president of a corporation, owning half of the stock, injured while superintending a job, was not an employee, where his salary was not considered in arriving at the premium in taking out a policy covering the employees."

But where the president of a corporation was employed by its manager to work in its coal yard at $2.00 per day, was carried on the payroll, and obeyed the manager's orders, he was an employee.

3

Where the superintendent of light lines, in a telephone conversation with his wife, authorized her to get some one to fix a break in the lines, and mentioned a certain one to get, the court held that the suggestion was merely advisory, and a different party selected by the wife was an employee entitling his dependents to receive compensation for his death.*

One who, being slightly intoxicated, was ordered to go home. but returned to work and was killed, was held to be an employee at the time of meeting with the fatal accident.5

The president and treasurer of a corporation, who managed and directed its business, received a salary which was included in the payroll, and on which premium was paid to the insurer, was not entitled to compensation, where there was no separate statement added to the payroll estimating the wage value of the labor incidental to his occupation, as distinguishable from his salary as an officer."

But where it was not shown that a portion of the salary received by such officer was in contemplation of his performance of manual duties an award cannot stand."

2. Cashman's Case, 230 Mass. 600, 120 N. E. 78, 2 W. C. L. J. 637. 3. Dewy v. Dewy Fuel Co.,

4.

Mich.

178 N. W. 36, 6 W. C. L. J. 330. 173 N. W. 119,

American Bridge Co. v. Funk Ind. Comm.,

4 W. C. L. J. 374.

5. Heist v. Wisconsin-Minnesota Light and Power Co.,

179 N. W. 583, 6 W. C. L. J. 728.

Wis. -,

6. Skouitchi v. Chic Cloak & Suit Co., 183 N. Y. S. 321, (1920), 6 W. C. L. J. 492, affd, 1921, 130 N. E. 229; Hubbs v. Addison Elect. Light & Power Co., - N. Y. App. (1921), 130 N. E. 302.

7. Kolpien v. O'Donnell Lbr. Co., N. Y. App.

(1921), 130 N. E.

103.

A shot firer, selected by the miners themselves from whose wages a small amount was deducted and paid into the union which paid the firer, though these provisions were not considered when the arrangement of hiring was made, was held to be an employee of the mine, where the company agreed with its miners that they might select, supervise, and discharge the shot firer.s

One engaged to do a specific job, over which the employer retains no right of control, is not an employee."

A taxi driver, allowed to retain 25 per cent of the amount earned, accounting to the owner of the taxi for the remainder, is a bailee and not an employee.10

A substitute is not an employee entitled to the protection of the act unless the one he substituted for was within the act.11 Nor are partners employees.12

A minor child working for his father is not an employee within the meaning of the California Act, where there has not been an actual emancipation of the child.13 See section 14, ante.

One drafted into the army, and sent as a member of a military company to work with civilian employees of a logging company operating for the government, is within the protection of the act.14

Under the Vermont act an employee who receives over $2000 a year, under a contract to continue for a period of a year or longer at a determined or determinable wage amounting to more than $2000 a year is excluded from the benefits of the act.15

8. In re Duncan, Ind. App. -, (1920), 127 N. E. 289, 6 W. C. L. J. 148; Bidwell Coal Co. v. Davidson, Iowa -, 174 N. W. 592, 5 W. C.

14. Rector v. Cherry Valley Timber Co., Wash. 653.

Cal.

15. Kelly's Dependents v. Hoosac Lbr. Co., 818. North Dakota Act amended 1921, § 8, $2400.

165 Pac. 15,

(1921), 169 Pac.

(1921), 113 Atl

§ 21. Who are Employees. (Cont'd)-It has been held that a nurse is the employee of the hospital in which she works, even though the hospital makes a special charge to the patient for the nurse, and only pays that amount to the nurse when it has been paid by the patient:16 that neither a professional nurse nor a physician is an employee under the Iowa and British acts; that chorus girls, vaudeville performers and professional football players may be employees;18 that a superintendent of construction, having peculiar skill and knowledge as an inventor of an apparatus in use, is allowed great liberty of action as to purchase of materials and manner of construction, does not necessarily indicate that lack of control on the part of his employer which would make the superintendent an independent contractor rather than an employee 19 That where an agent of a company employed others to assist him in making sales, deliveries and collections, invested some of his own capital in the business, and was under no supervision or direction of his principals, he was not an employee; 20 that a traveling salesman, selling goods for the defendant, receiving half the profits for his work, paying his own expenses and being forbidden to solicit regular customers of the company, was an employee;21 that the fact that a workman undertakes to do a special job with his own tools and materials, does not of itself prevent him from being an employee;22 that the manager of defendant's business, who had no agreement as to the amount of his wages, but drew large sums from time to time, was an employee; that an employee who was employed for fixed hours

16. Williamson v. St. Catherine's Hospital, 2 Cal. Ind. Acc. Com. 430, 11 N. C. C. A. 497.

17. Leg. Op. Ia. Ind. Com. (1915), 14; Murphy v. Enniscarthy Board of Guardians, 2 B. W. C. C. 291, C. A.

18. Gaiety Theatre Co. v. Mary Rockwell, 1 Cal. Ind. Acc. Com. (Part 1) 111; Howard v. Republic Theatre, 2 Cal. I. A. C. Dec. 514; Walker v. Crystal Palace Football Club, 3 B. W. C. C. 53, C. A.

19. Turner v. Oil Pumping & Gasoline Co., 2 Cal. I. A. C. Dec. 496. 20. Fineblum v. Singer Sewing Machine Co., 1 Conn, Comp. Dec. 126. 21. Reed v. Booth & Platt Co., 1 Conn. Comp. Dec. 121; Brown v. Indus. Comm. Cal. 163 Pac. 664, A 1 W. C. L. J. 119.

22. In re Rhienwald, 168 App. Div. 425, 153 N. Y. Supp. 598. 23. Howard v. George Howard Inc., The Bull. N. Y. P. 14.

Vol. 1, No. 11,