all the circumstances should be considered.10 So, too, it has been held that where one company is merely an instrument in the hands of another to evade liability both having the same officers and offices, a workman in the employ of one will be considered in the employ of both;11 that the employees of a contractor did not become the employees of the company whose president directed them to proceed with work on a wall, assuring them that it was safe;12 that one who is merely employed by the owner to superintend the work and hire employees is not liable for compensation to the employees; 13 that an independent contractor may at the same time be an agent of the principal for whom he is doing the work so that the principal is liable for the contractor's negligence under the doctrine of respondent superior; that the rights of the employee under the Workmen's Compensation Law are not affected by the invalidity of his employer's subcontract.15

An employee in a junk yard was paid by the day after cars reached the yard, and were spotted, but until then he was to strip engines at $4.00 per engine, using the tools of his employer. The court held that while the employee was stripping the engines he was not an independent contractor and injuries arising out of the employment of stripping the engines came within the protection of the compensation act.16

In another case the deceased worked for the defendant part of the time carting coal. He also obtained coal from the defendant at the "mine price" and delivered it to customers, receiving as compensation for his efforts the difference between the mine price and his selling price. On the day of the accident he came to the mine to procure coal for one of his customers and the defendant

10. Travis v. Hobbs Wall & Co., 165 11. App. 481.

11. Asplund v. Conklin Construction Co., 165 Ill. App. 44.

12. Kaplan v. Friedman Construction Co., 148 App. Div. 14, 132 Supp. 233.

13. Batchelder v. Charles W. Kreis and Mary E. Powers, 1 Cal. In. Acc. Com. (Part II) 63.

14. Norweigan Danish Methodist Epis. Church v. Home Tel. Co., 119 Pac. 834, 66 Wash. 511.

15. Wausau Lumber Co. v. Ind. Comm. 166 Wis. 204, 164 N. W. 836. 16. Cinofsky v. Indus. Comm. (1919), III. C. L. J. 185.

W. C.-11

125 N. E. 286, 5 W.

informed him that he had a delivery for him to make. Finally it was decided that he would first make the delivery to his customer and then haul the load for the defendant. He was killed soon after leaving the mine. The court in reversing an award said: "It is well recognized, in all cases brought under the act, that the burden is upon claimant to furnish the evidence from which the inference can reasonably be drawn that the injuries or death were caused by an 'accident arising out of and in the course of his employment,' within the meaning of the workmen's compensation act." 17

Where the claimant hauled garbage in his own truck furnishing the gasoline for it, the cans being handled by others, it was held that he was an independent contractor though paid $25.00 per day for himself and truck.18

Where there is a written contract of employment, the question. whether or not the relation is one of employer and employee or employer and independent contractor, is to be determined from the contract.19

§ 38. Workmen Held Independent Contractors not Employees. -In the following cases the workmen were held to be independent contractors and not employees. One who agreed with the respondent to build a silo for $20.00, respondent to furnish the foundation, the materials, and a helper but having no directive rights over the work;20 one who undertook to do a job of slate roofing for a fixed sum;21 a workman who agreed to cut and pile wood on the defendant's land for a fixed rate per cord, cutting as much as he pleased and when he pleased and working part of the time for other people;22 a teamster who did general hauling and

17.

Sugar Valley Coal Co. v. Drake, Ind. App. N. C. C. A. 254.

18.

481.

State Indus. Comm. v. Wiseman, 183 N. Y S 112, 6 W. C. L. J.

19. LaMay v. Indus. Comm.,

L. J 797.

Ill.

-, (1920), 126 N. E. 604, 5 W. C.

20. Boyington v. Stoddard, 1 Conn. Comp. Dec. 103.

21. Perham v. American Roofing Co., 193 Mich. 221, 159 N. W. 140, 15 N. C. C. A. 489; Barnes v. Evans & Co., 7 B. W. C. C. 24.

22. Benoit v. Bushnell, 1 Conn. Comp. Dec. 172; Snow v. Winkler, 1

was hauling bags of a cement company at 25 cents per trip;23 a whitewasher who entered into a contract to do a job of whitewashing for a certain price and to furnish the necessary material and labor; a taxicab driver receiving one-fourth of the proceeds for his services in operating the company's car;25 a man who agrees to paint a building and to receive a certain amount while he works and is at liberty to hire an assistant for whom he received the same amount, but on whose services he makes a profit, the owner of the building furnishing the material; 26 one contracting to erect a building and deliver it completed, hiring his own. assistants, who is not, as to details, subject to the direction of the company building it; a carpenter who agreed to build a barn. for the respondent, being paid by the hour, but hiring other men, and making some profit on their wages as well as on the materials furnished by him, and doing the work from general plans without any supervision as to methods;28 a decorator who agreed to paper a house being erected, the decorator to have complete liberty as to the hours of work;29 a number of associated workmen working under the direction and control of one of their number as their leader and business manager, who are treated collectively under a common firm name as directed by the leader; 30 a number of

27

Conn. Comp, Dec. 76; Donlon Bros. v. Industrial Acci. Comm., 173 Cal. 250, 159 Pac. 715; Fidelity etc., Co. v. Brush, 176 Cal. 448, 168 Pac. 890, 1 W. C. L. J. 153.

23. In re Stull, Ohio Ind. Comm. No. 117139, Oct. 4, 1915, Flickenger v. Indus. Comm., Col. (1919), 184 Pac. 851, 5 W. C. L. J. 8; In re Wm. Musolf 3rd. A. R. U. S. C. C. 152.

24. McDermott v. Grindal & Sons, Ill. Ind. Bd., Aug. 3, 1914; Finklestein v. Balkin, 103 Supp. 99; Hungerford v. Bonn. 183 App Div. 818, 171 N. Y. S. 280, 2 W. C. L. J. 682; Kackel v. Serviss 180 App. Div. 54, 167 N. Y. S. 348, 1 W. C. L. J. 235; Holbrook v. Olympia Hotel Co.,

200 Mich 597, 166 N. W. 876, 1 W. C. L. J. 1076.

25. Smith v. General Motor Cab Co., Ltd., 80 L. J. K. B. 839, 1 N. C. C. A. 576.

26. Wright v. Barnes, and Fidelity & Casualty Co., 1 Conn. Comp. Dec. 260, 248.

27.

Edmonson v. Coca-Cola Co., -, Tex. Civ. App.

150 S. W. 273.

28. Crittenden v. Robbins, 1 Conn. Comp. Dec. 523.

29. Lewis v. Stanbridge, 6 B. W. C. C. 568.

30.

Penas v. Utah Construction Co., 2 Cal. Ind, Acc. Com. 749; Kas

evitch v. L. R. Wattis Co., 2 Cal. Ind. Acc. Com. 357.

men engaged under the claimant to chop down trees for a lump sum for the job, which was to be distributed among the gang by arrangement among themselves;31 a salesman and collector on a purely commission basis who employed various persons to help him, furnished his own conveyance and invested some of his own capital in the business;32 two men who were owners of a corn cutter hired out the machine with their own services, to various farmers to cut corn for silos at the rate of $2.00 an hour, while actually engaged, for the machine and their services; a teamster

paid per load for one definite service, producing one agreed result, having full control of his team, his time, his methods of work, as to whether or not he hired help and of all details except as to what is to be hauled, teaming as such being his regular business;34 M. Co. who agreed to furnish night watchmen to the owners of piers, where cargo were stored and the M. Co. had the sole right of hiring and discharging the watchmen;35 a plasterer theretofore doing journeyman work, who makes an oral contract to do a plastering job for a lump sum and is given free hand to employ assistants, and takes risks of profit and loss, and is not to be controlled or supervised; the owner of a concrete mixer who agreed to build culverts for a town at the rate of $15.00 per day for himself, the machinery and three other employees;37 one who agreed to blast and break up stone to be used by the respondents for building purposes, receiving wages per day, but using his

31. Curtis v. Plumtre, 6 B. W. C. C. 87; Gilmore v. Sexton, 1 Cal. I. A. C. Dec. 257; Rose v. Pickrell, 1 Cal. I. A. C. Dec. 85; Soloski v. Strickland, 1 Conn. Comp. Dec. 564; Helton v. Tall Timber Lumber Co. of La.,-La.— (1920), 86 So. 729, 7 W. C. L. J. 299.

32. Fineblum v. Singer Sewing Machine Co., 1 Conn. Comp. Dec. 126. In re James Reed, 3rd A. R. U. S. C. C. 152.

33. Busse v. Brugger, Third Annual Report (1914), Wis. Ind. Com. 78, LaMay v. Indus. Comm., (1920), 126 N. E. 604, 5 W. C. L.

J. 797.

Ill.

34. McCoy v. Kirkpatrick, 1 Cal. I. A. C. Dec. 599; Ryland v. Harve M. Wheeler Lumber Co.,

850.

La. —, (1920), 84 So. 55, 5 W. C. L. J.

35. Oberg v. W. J. McRoberts & Co., 6 N. Y. St. Dep. Rep. 386. 36. Baker v. Armstrong, 2 Cal. I. A. C. Dec. 1057; In re Thomas Proud Dinwiddie Cons't Co., 2nd A R. U. S. C. C. 207.

37. Day v. Ellington, Third Annual Report (1914), Wis. Ind. Com. 74.

own tools and providing the dynamite and assistants used, and being under no direction or duty from the respondent;38 a carpenter working in a shop on materials furnished by the employer and receiving $1.00 an hour for his services, while thus working using the tools and appliances of his shop;39 a man working under contract to cut fire wood at a certain price per cord, he agreeing to furnish his own tools and determining his own hours of labor;40 a man who verbally agreed to break steel and clear cinders at so much per ton, and who employed five or six men to assist him and was paid weekly; a workman who entered into a written agreement with a mining company to carry out specific blasting operations, where the mining company had exercised no control over the men apart from the agreement;" a mine owner, giving another a contract to mine, reserved no rights to interfere with details of the work, but only required it to be done in conformity with the contract and the mining rules;43 a member of a copartnership working under a subcontract; the members of a partnership which entered into a contract with a contractor to install certain machinery, one of the partners, living at the place of business being injured while helping to unload machinery billed to the contractor;45 a rabbit trapper who was paid according to the number of animals caught, the principal furnishing the traps. and the use of a cottage while the man was thus engaged; one who agreed to cut mine props at a specified sum each, he employing his own assistants and receiving no directions as to how to

42

38. Wowinski v. Vito, 1 Conn. Comp. Dec. 629.

46

39. Crittenden v. Dr. B. B. Robbins Bristol Trucking Co., 1 Conn. Comp. Dec. 523.

40. Donlon Bros. v. Industrial Acc. Com., 173 Cal. 250, 159 Pac. 715, 15 N. C. C. A. 492; Parsons v. Industrial Acc. Com. 178 Cal. 394, 173 Pac. 585, 2 W. C. L. J. 619.

41. Vamplew and others v. Pargate Iron & Steel Co., 88 L. T. 756, 5 W. C. C. 114. C. A.

42. Reid v. Leitch Collieries, 7 B. W. C. C. 1017.

43. Merriweather v. Sayre Mining & Mfg. Co., 49 So. 916, 161 Ala. 441.

44. Kasovitch v. L. R. Wattis Co., 2 Cal. Ind. Acc. Com. 357.

45. Anderson v. Perew, 2 Cal. Ind. Acc. Com. 727.

46. McConnell v. Galbraith, 7 B. W. C. C. 968.