act, or has in that manner exercised the option frequently given him when the employer has defaulted as to some duty required of him by the act, which defenses release the employer from liability for damages.

96

But this contention will not avail others than the employer and in an action against third parties election of the employe to reject need not be alleged nor proved by the claimant.""

The employer's rejection of the Act need not be alleged in every count."

98

It is held in Arizona that the Compensation Act does not restrict or limit the right of a personal representative to sue for wrongful death under paragraph 3372 Rev. Statutes, Arizona 1913.99

In an action at common law for injuries caused by the negligence of a non-assenting employer, it was incumbent upon the plaintiff to prove, as he had alleged, that he was in the exercis of due care at the time of the injury. Defendant's admission during the course of the trial that he was employing more than five workmen, and that he was not an assenting employer did not relieve the plaintiff from the necessity of proving his allegation; the admission as to the number of workmen being immaterial as there was no allegation as to that fact, and in the absence of an appropriate allegation by way of a brief statement, it is assumed that the defendant is in Maine a non-assenting employer.1

96. Brabon v. Gladwin Light etc. Co., 201 Mich. 697, 167 N. W. 1024, 2 W. C. L. J. 302; Arkansas Valley Ry. Light & Power Co. v. Ballinger, Ark. (1919), 178 Pac. 566, 3 W. C. L. J. 581.

97. Vose v. Central Illinois Public Service Co., 286 Ill. 519, (1919) 122 N. E. 134, 3 W. C. L. J. 613.

Ariz. 190 Pac. 88, 6

98. Hughes v. Eldorado Coal & Mining Co., 197 Ill. App. 259. 99. Inspiration Consol. Copper Co. v. Conwell, W. C. L. J. 249; Behringers Admix. etc., v. Inspiration Copper Co., 17 Ariz. 232, 149 Pac. 1065.

1. Nicholas v. Folsom, Me., (1920), 110 Atl. 68, 6 W. C. L. J. 182; Nadeau v. Caribou Light and Power Co., 118 Me. 325, 108 Atl. 190.

CHAPTER III.

WHO COMES UNDER THE ACT.

Sec.

16. General.

17. Every Person, Corporation, Association, etc., As Employers.

18. Every Person, Corporation, Association, etc., As Employers (Cont.) 19. Employees Generally.

20. Who are Employees.

21. Who Are Employees (Cont'd).

22. Employment Through Agents And Assistants.

23. Employee Doing Incidental Work.

24. Loaned Employees.

25. Partnership As Employer.

26. Employers of Teamsters.

27. Employer Of Less Than Stated Number Of Employees.

28. Regularly Employed And Usual Business Of Employer.

29. Casual Employments And Regularly Employed In Unusual Business

30.

Of Employer.

Employments Not Casual.

31. Farm Labor.

32. Employments Held Not To Be Farm Labor.

33. Domestic Servants.

34.

Persons Whose Average Annual Earnings Exceed A Stated Amount,
Excluded.

35. Officials Of Political Subdivisions.

36. Employees Of The State And Its Political Subdivisions.

38. Workmen Held Independent Contractors Not Employees.

39. Workmen Held Employees And Not Independent Contractors.

40. Owner of Premises As Employer Of The Employees Of His Contractors And Subcontractors.

41. On, Or About the Premises.

42. Liability of Owner Or Lessor To Employees Of Lessee.

43. Dual Employers, Employments, And Business Enterprises.

44.

Subrogation And Third Persons As Affected By The Acts.

45. Subrogation And Third Persons As Affected By The Acts. (Cont'd). 46. Cases Exclusively Covered By Federal Law.

47. Extra Territorial Application Of Acts.

§ 16. General. The following provisions with varying slight modifications are typical of most American Compensation Acts. "The word 'employer' as used in this act shall be construed to mean every person, partnership, association, corporation. trustee, receiver, and every other person, including any person or corporation operating a railroad, and any public service corporation, using the service of another for pay

"The word 'employee' as used in this act shall be construed to mean every person in the service of any employer as defined in this act, under any contract of hire, express or implied, oral or written

In the great majority of claims for compensation, no question arises as to whether the required contractual relation of employer and employee exists. There are, however, many cases where the question is difficult of determination and other cases where it is purposely made so by persons seeking to evade liability under the act. For example, a workman may be loaned by one employer to another, an owner of teams employs drivers and rents the teams and drivers, sometimes including himself, for a stipulated sum for both, frequently a series of contracts and sub contracts clouds the question. Again, two or more employers between whom contractual relations exist may be interested in the same enterprise, making it difficult to say whether one is an employee of a particular employer or of all of them. A shareholder and vice president of a corporation who worked with the regular workmen, though at the same time acting as foreman, has claimed compensation as an employee and recovered; while it has been held that the president and majority stockholder of a manufacturing corporation could not obtain compensation for injuries received while engaged in manual labor for the corporation. It would be impossible to formulate any gen

1. Mezansky v. Sissa, 1 Conn. Comp. Dec. 430.

2. Beckman v. Oelerich & Son, 174 App. Div. 353, 160 N. Y. S. 791; Benjamin v. Rorenberg Bros., 223 N. Y. 569, 119 N. E. 1030, 18 N. C. C. A. 906, Aff'g 180 N. Y. App. Div. 234, 167 N. Y. S. 655, 1 W. C. L. J. 670.

3. Bowne v. Bowne Co., 221 N. Y. 28, 116 N. E., reversing the order 176 App. Div. 131, 162 N. Y. S. 244. But see Kennedy v. Kennedy

eral rule on these diverse cases that would be of much assistance. More can no doubt be acomplished by a study of the rulings and reasons of courts and commissions in the decided caes, which will facilitate reasoning by analogy to the logical ruling to be applied to the facts of the case at hand. In an Iowa case the court said of the terms "employer" and "employment" "They are not of the technical not of the technical language of the law or of any science or pursuit and must, therefore be construed according to the context and the approved usage of the language.

The construction of the terms employer and employee, as above set out, gives the general suggestion that a contract of hire, written or oral, express or implied, must be found to exist between the person claiming compensation and the one against whom the claim for compensation is made, otherwise the latter is not liable to pay the compensation provided under the act. As to when or where such contract exists is sometimes difficult of determination and much conflict is found in the decisions. The burden of establishing the existence of the contract or the relationship of employer in reference to some matter outside the risks assumed titled to compensation."

Mfg. etc. Co., 177 App. Div. 56, 163 N. Y. S. 944, reargument granted in 178 App. Div. 946, 165 N. Y. S. 1094; Howard v. Howard, 221 N. Y. 605, 117

N. E. 1072, 15 N. C. C. A. 461.

404.

4. The State v. Foster, 37 Ia. 5. Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374; Rhatigan v. Brooklyn Union Gas Co., 136 App. Div. 727; 121 Supp. 481; Kimball v. Cushman, 103 Mass. 194; Wood v. Cobb, 3 Allen, 58; United States Board and Paper Co. v. Landers, 47 Ind. App. 315, 93 N. E. 232; Singer Mfg. Co. v. Rahn, 132 U. S. 518; Sibley v. State, 89 Conn 682, 96 Atl. 161, L. R. A. 1916C, 1087; Hillestad v. State Industrial Ins. Com., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789; Kemp v. Lewis, 3 K. B. 543, 7 B. W. C. C. 422 C. A.; Wray v. Taylor, 109 L. T. Rep. N. S. 120; Bobbey v. Crosbie, 6 B. W. C. C. 592 C. A.; In re Cox, 225 Mass. 220, 114 N. E. 281; Pierson v. Rapid Transit Co., 102 Misc. Rep. 130, 168 N. Y. S 425, 1 W. C. L. J. 705; Acklin Stamping Co. v. Kutz (Ohio), 120 N. E. 229, 2 W. C. L. J. 883; In re Connerford, 247 Mass. 571, 113 N. E. 460; Nissen Transfer & Storage Co. v. Miller, Ind. 125 N. E. 652, 5 W. C. L. J. 519; Matter of Fitzgerald, 21 Misc. 226.

6. Zeitlow v. Smock, Ind. App.-. 117 N. E. 665; Tr. Co. v. Industrial Comm., Ill., 129 N. E. 135.

Rockford City

§ 17. Every Person, Corporation, Association, etc., as Employ. ers. It has been held that the test by which to determine whether a person is an employer of another is to ascertain whether, at the time the injury was suffered, the other was subject to such person's orders and control and was liable to be discharged for disobedience of orders or misconduct.' It appears however from the decisions that this rule is not always uniformly applied. It has been held that a caddie for a golf club, paid by the member whom he serves, is an employee of the club and not of the member he might be serving at the time of the accident; that an infant employer cannot evade the responsibilities of the act by reason of his infancy; that the relation of employer and employee does not depend upon the legality of the contract of employment;10 that an employee may compel the appointment of an administrator to take the place of the deceased employer from whom the employee was entitled to compensation;11 that an owner of a chartered vessel and not the charterer is the employer of the captain;12 that a person who has made colorable transfer of his business and not the transferee is the employer;13 that the owner of a garage is not the employer of another's chauffeur with whom he has an agreement to pay

7. United States Board & Paper Co. v. Landers, 47 Ind. App. 315, 93 N. E. 232; Tuttle v. Embury Martin Lumber Co., 192 Mich. 385, 158 N. W. 875; Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648. But see Pollard v. Goole & Hull Stearn Towing Co. Ltd., 3 B. W. C. C. 366, C. A.; State ex rel. Virginia & Rainy Lake Co. v. District Court, 120 Minn. 43, 150 N. W. 211; Mason v. Western Metal Co., 1 Cal. I. A. C. Dec. 284; Smith v. Eichelberger, 175 Ill. App. 231. Washington Act, 1921 § 6604-3.

8. Harris v Claremont Country Club, 2 Cal. Ind. Com. 972; Claremont Country Club v. Indus. Acc. Com., 174 Cal. 395, 163 Pac. 209, 15 N. C. C. A. 448; Chisolm Chase, Mass.1921, 131.N. E. 161.

9. Re Smith, 17 West L. Rep. (Can.) 550. 10. Boyle v. A. Cheney Piano Action Co., N. Y. App. 374, 7 W. C. L. J. 93.

184 Supp.

11. L. R. A. 1916A (note) 113, Re Bryne, (1910 Prob.), 44 Ir. Law Times 98, 3 B. W. C. C. 591. Who are employers, see L. R. A. 1916A, note p. 13; Also L. R. A. 1916A, note p. 245.

12. Norman v. Empire Literage & Wrecking Co., 2 N. Y. St. Dep. Rep. 480; Mackinnon v. Miller, (1909), 46 Scotch L. R. 299, 2 B. W. C. C. 64, Ct. of Sess.

13. McCormick v. Sander, 37 N. J. Law J. 56.