pensation from the manufacturer of the lumber, for, the true test of employment is whether the work being done pertains to the business, trade, or occupation of the claimed employer carried on by it for pecuniary gain; and if so the fact that the work is being done through the medium of an independent contractor does not relieve the employer from liability.50

§ 41. On or About the Premises. It has been held that work is not done "on or about one's premises," within the meaning of the acts, where a workman on a new building was killed on a public road from 110 to 160 yards away from the building, while carting water to it;51 where a workman was injured while doing some work he had been sent to do on a ship at a dock about 550 yards from the factory of his employers;52 where a workman was killed at a place about two miles from the "engineering work" to which he was hauling sand from a pit;53 where a workman hired by a subcontractor to cart rubbish was killed in the road two miles from the site of his work;54 where a workman sustained an injury while stacking rails 700 yards from the "engineering" work of his employers;55 where a miner was fatally injured at a point 400 yards from the mine pit, while transferring lumber from a railroad to the mine by means of a colliery cart 56 where a driver met with an accident on the public road. two miles from the factory from which he was hauling lumber to a building in the course of construction.57

But it has been held that where a workman was carrying goods from a factory building to a point about 32 feet distant on the other side of the street and was there injured the injury occurred about the factory;58 that where a workman was injured while

50. Boyle v. Parker Young Co., Vt. 51. Penn v. Miller, 2 W. C. C. 55 C. A.

52.

54.

1921, 112 Atl. 385.

Barclay, Carle & Co., Ltd., v. McKinnon, 3 F. 436 Ct. of Sess. 53. Pattison v. White & Co., 6 B. W. C. C. 61 C. A. Andrews v. Andrews & Mears, 1 B. W. C. C. 264. 55. Black v. Dick Kerr & Co., Ltd., 8 W. C. C. 40, H. L. 56. Coylton Coal Co. v. Davidson, 7 F. 727, Ct. of Sess. 57. Whitton v. Bell & Sime, Ltd., 1F, 942, Ct. of Sess. 58. McGovern v. Cooper & Co., 4 F. 249, Ct. of Sess.

engaged in loading a cart in the street near the entrance to his employer's premises he was about the premises.59

§ 42. Liability of Owner or Lessor to Employees of Lessee.— Most of the acts either contain express provisions or imply liability for compensation on the part of the owner or lessor when the relation of lessor and lessee is created for the fraudulent purpose of avoiding liability.

It has been held that the lessee of a coal mine is an independent contractor although the lessor reserves the right to inspect the premises, and it is agreed that all the workings on the premises shall be done under the general supervision of the superintendent of the lessor.60

Under the California Act a lessee is not a contractor of the lessor and the lessor is not liable for injuries to employees of the lessee or his subcontractors.61 So in the case of a corporation that owned an oil well which, in default of payment of a mortgage thereon, it turned over to the mortgagee as lessee to operate and collect the income to pay the mortgage, it was held that the corporation was not the employer of an injured workman employed by the mortgagee or lessee to look after the well.62

In an Ohio case where a coal company, which had temporarily suspended operation of its mines, leased a portion of its lands to two former employees who employed their own help, it was held that the lessor company was not the employer of help employed by the lessees.63 It has been held under the Wisconsin Act lessors and lessees do not sustain the relation of principal and contractor to each other, and that where an employee of the lessee

59. Powell v. Brown, 12 B. 157 C. A 1 W. C. C. 44.

60. Bokoshe Smokeless Coal Co. v. Morehead, 126 Pac. 1033, 34 Okla. 424.

61. Brain v. Eisnfelder, 2 Cal. Ind. Acc. Com. 36, 11 N. C. C. A. 378; Cypher v. United Development Co., 1 Cal. Ind. Acc. (Part II) 425.

62. Farris v. Patomac Oil Co., 2 Cal. Ind. Acc. Com. 462.

Com.

63. In re Monroe, 1 Bull. Ohio Ind. Com. 186; See also Powers v. Hocking Valley Ry. Co., 31 Ohio Cir. Ct. 488.

64

is injured the lessor is not liable. In a case under the Kansas Compensation Act an injured mine employee sought to hold liable both the lessor and the lessee of a mine as partners; it being shown that the lessor retained a certain supervisory control over the operations of the lessee. The court in holding the lessee liable as an independent contractor said: "Whatever may be the basis of the liability of the owner in certain cases ....whether imputed agency, public necessity, or other ground, real or fictitious, this statute attaches no liability for compensation to one who is not in the execution, control or management of the work, wherein the injury occurs. 9765

§ 43. Dual Employers, Employments, and Business Enterprises. The subject of dual employers, employments, and business enterprises is as a rule not covered by specific provisions in the acts and the few decisions relating thereto are not entirely in accord.

A delivery man engaged by two employers to deliver packages, had delivered all the packages belonging to A, and was on his way to deliver a package belonging to B, when he was injured, and it was held that B alone was liable for compensation.66 So a night watchman, who has contracts of hire with six independent concerns and acts as watchman for all of them, is an employee of each, and may recover from the one on whose premises he is injured. But a night watchman employed to patrol the outside of the premises of several firms, watching for fires and other unusual occurrances, is employed jointly by all of said firms, and they are all liable for compensation under the California Act.68 In New Jersey it has been held, that a watch

64. Puddy v. Ira R. Fitch, Fourth Annual Report (1915), Wis. Ind. Comm. 17.

65. Maughlelle v. J. H. Price & Sons 99 Kan. 412, 161 Pac. 907, (1916). 66. Mitchell v. Alfred Stahel & Sons, (1916), 3 Cal. Ind. Acc. Coni. 303.

67. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491; But see M. Johnston v. Mountain Commercial Co., 1 Cal. I. A. C. Dec. 100; Mason v. Metal Supply Co., 1 Cal. I. A. C. Dec. 284.

68. Frohn v. Bayle, La Coste & Co., 3 Cal. Ind. Acc. Com. 274.

man employed by several different persons to watch their premises is the joint employee of all such persons."

70

71

The fact that a policeman employed by a mining company, also happened to be a deputy sheriff and received fees from the county, did not relieve the company from liability. A janitor in a public school, who also did work for other people, but was injured while at work for the school, was allowed to recover compensation from the municipal corporation employing him."1 The fact that one is employed in a dual capacity by the defendant and another does not make him any the less an employee of the defendant, and the dependents may elect which of the employers shall be proceeded against, under the California Act.72 A number of firms, individuals and corporations were compelled by law to repair a dam on a stream, the water power rights being owned by them jointly. By a decree of court three referees were appointed to carry out the work to be done. It was held that the referees were the agents of the various owners and that all were liable jointly for compensation by reason of the accidental death of a workman employed by the referees, and that the amount payable by each one of the employers was proportionate to the amount of his water right in the stream where the dam was to be built.73

A partnership was engaged to do the glazing on a building, and as such the members were independent contractors. One of the partners looked after the delivery of the glass and was paid by the general contractor for this work. He was held to be the employee of the general contractor while performing this work."*

Where a corporation conducted a retail store and a warehouse, in which a freight elevator was operated, and therefore came

69. Curran v. Newark Gear Cutting Machine Co., 37 N. J. Law J. 21.

70.

71.

James v. Witherbee, Sherman & Co., 2 N. Y. St. Dep. Rep. 483. Penfield v. Town of Glastonbury, 1 Comm. Comp. Dec. 637. 72. Johnston v. Mountain Commercial Co., 1 Cal. Ind. Acc. Com. 100.

73. Sayres v. Ogdenbury Power & Light Co., 8 N. Y. St. Dep. Rep.

393. 74.

Dyer v. James Black Masonry & Contracting Co., 192 Mich. 400, 158 N. W. 959, 15 N. C. C. A. 499.

within the hazardous industry classification of the Illinois Act, but also conducted a farm near the city, it was held that one of its farm employees injured in the course of his employment by the kick of a horse, was not entitled to compensation under the Act, since the particular employment in which he was engaged at the time of the injury was not declared by the act to be extra hazardous.75

The Illinois Commission has no authority to award compensation in the case of a city employee accidentally killed in a non hazardous employment even though the city may also be engaged in hazardous employments.76

A repair shop operated by a department store company for the repair of vehicles in which machinery is used, power-driven machinery employed, and manual labor exercised, and over which the company has control or right of access, is an extrahazardous business, though merely incidental to the company's principal business, and a carpenter employed in such shop is engaged in extrahazardous employment within the provisions of the Washington Workmen's Compensation Act."

In a California case the commission found that the employee was injured by accident while in employment as a janitor of a dancing hall and house and garden laborer. His injury actually occurred while pruning a fig tree. The court on appeal said: "Ohlsson was thus employed for the performance of services in two capacities: One that of a janitor, falling within the terms of the act; the other as a house and garden laborer; employees engaged therein being excluded from its operation. Hence, if the injury sustained by Ohlsson was due to an accident while he was engaged in labor as and under his employment as a gardner, he would not be entitled to the benefits of the act, unless the service was incidental to the work of janitor. The pruning of this fig

75. Vaughn's Seed Store v. Simonini, 275 Ill. 477, 114 N. E. 163, 14 N. C. C. A. 1075.

76. Marshall v. City of Pekin, 276 Ill. 187, 114 N. E. 497, 14 N. C. C. A. 946.

77. Wendt v. Industrial Ins. Commission of Washington, 80 Wash. 111, 5 N. C. C. A. 790, 141 Pac. 311 (1914); State v. Business Property Security Co., 87 Wash. 627, 152 Pac. 334, 11 N. C. C. A. 323.