b. Proceedings under this section. An appeal from an order of the county court judge detaining a vessel under 11 lies to the provisional court, and not to the court of appeal.82 XIV. Reports of injuries (§ 12). a. Text of $ 12. Section 12 (1) Every employer in any industry to which the Secretary of State may direct that this action shall apply shall, on or before such day in every year as the Secretary of State may direct, send to the Secretary of State a correct return specifying the number of injuries in respect of which compensation has been paid by him under this act during the previous year, and the amount of such compensation, together with such other particulars as to the compensation as the Secretary of State may direct, and in default of complying with this section shall be liable, on conviction under the summary jurisdiction acts, to a fine not exceeding £5. (2) Any regulations made by the Secretary of State containing such directions as aforesaid shall be laid before both Houses of Parliament as soon as may be after they are made [new]. XV. Definition clauses (§ 13). a. Text of $ 13. son who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labor, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing; Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependents or other person to whom or for whose benefit compensation is payable; "Dependents" means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegiti mate child and parent or grandparent respectively; "Member of a family" means wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; "Ship," "vessel," "seaman," and "port" Section 13. In this act, unless the con- have the same meanings as in the mertext otherwise requires, chant shipping act 1894; "Manager," in relation to a ship, means the ship's husband or other person to whom the management of the ship is intrusted by or on behalf of the owner; "Employer" includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this act, be deemed to continue to be the employer of the workmanitan Police Force; whilst he is working for that other son; per "Police force" means a police force to which the police act 1890, or the police (Scotland) act 1890, applies, the City of London Police Force, the Royal Irish Constabulary, and the Dublin Metropol premises not under the control or management of the person who gave out the materials or articles; "Outworker" means a person to whom articles or materials are given out to "Workman" does not include any per- be made up, cleaned, washed, altered, orson employed otherwise than by way of namented, finished, or repaired, or adaptmanual labor whose remuneration ex-ed for sale, in his own home or on other ceeds £250 a year, or a person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business, or a member of a police force, or an outworker, or a member of the employer's family dwelling in his house, but, save as aforesaid, means any per 82 Panagotis v. The Pontiac [1912] 1 K. B. (Eng.) 74 [1911] W. N. 221, 28 Times L. R. 63, 56 Sol. Jo. 71. The exercise and performance of the powers and duties of a local or other of this act, be treated as the trade or public authority shall, for the purpose business of the authority; "County court," "judge of the county court," "registrar of the county court," "plaintiff," and "rules of court," as respects Scotland, mean respectively sher iff court, sheriff, sheriff clerk, pursuer, | he was subject to the control and direcand act of sederunt. tion of the ship foreman, who, if dissatisfied with his services, could stop the work and send for another.86 [Section 13 takes the place of subsec. 2 of 7 of the act of 1897, but contains the definition of a number of terms not used in the earlier act.] b. Who are "employers." For American Cases defining this term, see post, 245. Public bodies may be employers; such as the central body constituted under 1 of the unemployed workmen act 1905, which has provided temporary work for a workman; 83 and the word "employer" covers the Sydney Harbor Trust Commissioners.84 An infant employer is liable as any other employer under the workman's compensation act of 1908.85 The owners of a ship may be found to be the "employers," of a workman employed in weighing a cargo, although he had been selected from the list of weighers appointed and licensed under statutory authority, where it appeared that 83 Porton v. Central (Unemployed) Body for London [1908] W. N. (Eng.) 242, 25 Times L. R. 102; Gilroy v. Makie [1909] S. C. 466, 46 Scot. L. R. 325. 84 Re Ryan (1911) 11 New South Wales St. Rep. 33. 85 Re Smith (1911) 17 West L. Rep. (Can.) 550. 86 Wilmerson v. Lynn & H. S. S. Co. [1913] 3 K. B. 931, (Eng.) 82 L. J. K. B. N. S. 1064, 109 L. T. N. S. 53, 29 Times L. R. 652, 57 Sol. Jo. 700, [1913] W. C. & Ins. Rep. 633, 6 B. W. C. C. 542. 87 Re Byrne (1910; Prob.) 44 Ir. Law Times. 98, 3 B. W. C. C. 591. 88 The owners of a threshing machine are the employers of a man employed by them as a road man to go along the road ahead of the thresher, but who when the machine is at work acts as trusser, and is paid by the farmer, and was so at work when injured. Reed v. Smith (1910) 3 B. W. C. C. (Eng.) 223. A coal trimmer, although employed by an agent of the harbor commissioners, is in the employment of a firm of shipping agents who act as managers of a vessel being loaded with coal for third persons, where the trimmers are directly under the control of the agents, and are paid from the freight, the balance of which, less charges, is sent by the agents to the owners of the vessel. Gorman v. Gibson [190910] S. C. 317, 47 Scot. L. R. 394. Shipowners may be found to be the employers of a workman employed to assist in mooring ships, although he was engaged and paid by a stevedore, where it appears that the owners gave the money to the stevedore instead of to the workman as a matter of convenience. Pollard v. Goole & H. Steam Towing Co. (1910) 3 B. W. C. C. (Eng.) 360. Where an agreement between the owners A workman who has been receiving compensation may, upon the death of the employer, and the neglect or refusal of the next of kin to take out letters, secure the appointment of an administrator so as to be able to enforce his right to compensation, since the workman cannot be deprived of compensation merely because there is no one standing in the position of "employer." 87 In the general law of master and servant, the question frequently arises as to which of two persons is the employer of a workman who is admittedly a servant of one of them. Cases of this character, involving compensation, will be found in the note; but it is to be noted that the decisions turn on principles entirely independent of the compensation act.8 88 The court will not interfere with the of a vessel and the skipper provided that the skipper was to work the vessel on the best paying trade, receiving for his services two thirds of all the freight earned, out of which he was to pay all the wages for the crew, and all other expenses connected with the working of the vessel, remitting to the owner the remaining one third, and it further provided that if he had cause to give up command of the vessel, he was to advise the owner, and, if requested, to bring the vessel to certain ports free of all charges to the owner, and further provided for his leaving the vessel at a loading port, a mate employed by the skipper, who would get his full wages whether the vessel earned any freight or not, may be found to be under a contract of service with the owners. Kelly v. The Miss Evans [1913] 2 I. R. 385, 47 Ir. Law Times, 155, [1913] W. C. & Ins. Rep. 418, 6 B. W. C. C. 916. The mate of a vessel may be found to be in the employment of the owners where, by the contract between them and the captain, the latter made all contracts for freight, and engaged the crew, and took the vessel where he wished, and the owners paid the wages of the crew if the freight was not sufficient therefor, and tonnage and pilotage expense were deducted from the gross freights, and the captain took two thirds of the residue, paying thereout all other expenses. The Victoria v. Barlow (1911) 45 Ir. Law Times, 260, 5 B. W. C. C. 570. A member of the gang engaged in unloading sulphur from a barge is not an employee of the owner of the sulphur, where he engaged one of the gang to supply the labor necessary, and that one engaged the others and supplied the necessary tools, and the money received was divided equally among the gang, except that the leader received two pennies from each of the others, decision of the county judge upon ques-, tions of pure fact, such as whether the respondent was the employer of the applicant.89 c. "Contract of service." The determination of the question the owner merely directing where the sulphur should be placed. Bobbey v. Crosbie (1915) 84 L. J. K. B. N. S. (Eng.) 856, 112 L. T. N. S. 900, 8 B. W. C. C. 236. Where a mandatory hires workmen in his own name, without disclosing his principal, and pays them with his own money or check, he is liable for any compensation to which they may be entitled because of injuries received while in such employment. Demers v. McCrae (1911) Rap. Jud. Quebec, 40 S. C. 123. 89 Pollard v. Goole & H. Steam Towing Co. (Eng.) supra (respondents held to be employers of applicant). 90 A workman who was injured while at work in the labor yard of a charitable organization, having applied there for aid, had no "contract of service." Burns v. Manchester & S. Wesleyan Mission (1908) 99 L. T. N. S. (Eng.) 579, 125 L. T. Jo. 336, 1 B. W. C. C. 305. There is no contract of service between a dispensary medical officer and the board of poor law guardians, who appoint him to perform the statutory duties of his office. Murphy v. Enniscorthy Guardians [1908] 2 I. R. 609, 42 Ir. Law Times, 246, 2 B. W. C. C. 291. There is no contract of service where a taxicab driver takes a cab from the own, er's yard by the day, and pays over 75 per cent of the daily receipts to the owners, and retains 25 per cent, less the price of his petrol. Doggett v. Waterloo Taxi-Cab Co. [1910] 2 K. B. (Eng.) 336, 102 L. T. N. S. 874, 79 L. J. K. B. N. S. 1085, 26 Times L. R. 491, 54 Sol. Jo. 541, 3 B. W. C. C. 371; Bates-Smith v. General Motor Cab Co. [1911] A. C. (Eng.) 188, 80 L. J. K. B. N. S. 839, 27 Times L. R. 370, 4 B. W. C. C. 249. A continuing contract within the meaning of § 13 does not exist between a farmer and a laborer who worked by the day, and came and went as he pleased, and who occasionally absented himself without notice, so as to render the farmer liable to compensation, where, when the workman presented himself for work on the morning of the day on which he was injured, he was told by the farmer that another farmer had asked him to lend him a man, and that the workman was to go and aid the second farmer in threshing operations, which he did, incurring during such employment the injuries of which he died. Boswell v. Gilbert (1909) 127 L. T. Jo. (Eng.) 146, 2 B. W. C. C. 251. There is no contract of employment between a farmer and a quarryman who sometimes assisted the farmer in getting in his crops in the evening, and who received whether a contract of service exists between the workman and the respondents depends upon general principles, rather than upon the construction of the compensation act. There can be no compensation unless such a contract does exist.90 Nor, in the absence of such a contract, is no money for his services, but the farmer gave him beer and sometimes a supper when the work was over, since, if this was a contract of employment, it would have been illegal under the truck act, and could not constitute a "contract of service" within the meaning of § 13 of the workmen's compensation act. Kemp v. Lewis [1914] 3 K. B. (Eng.) 543, [1914] W. N. 264, 137 L. T. Jo. 213, 83 L. J. K. B. N. S. 1535, 111 L. T. N. S. 699, 7 B. W. C. C. 422. A letter fixer has a contract of service with a firm of enamel letter makers where he frequently obtained work from them, and was in the habit of calling regularly at their place of business and occasionally canvassed among shopkeepers to fix letters in behalf of the firm, and was paid by them in respect to the orders he received. Taylor v. Burnham [1910] S. C. 705, 47 Scot. L. R. 643, 3 B. W. C. C. 569. Where a firm of fish curers entered into a contract with a man whereby they were to furnish him with a flit boat of which the man was to be skipper and was two employ a helper, and the flit boat was to be engaged in carrying barrels of fish from the fish stations to vessels, and empty barrels back, both for the owners and for other curers, the gross profits of the work to be divided into three parts, one for the owners and one for each of the men, and when there was no work of this character the owners were, so far as possible, to furnish other work on shore for the men, the contract was one of employment, and not of partnership. Jamieson v. Clark (1909) 46 Scot, L. R. 73, [1909] S. C. 132, 2 B. W. C. C. 273. Where a workman engaged in quarrying stone had a partner with whom he shared the money earned, and they employed and paid five or six men to work with them, and were paid a certain sum per ton for every ton of ordinary stone, and an extra payment for every ton of building stone, and the quarry owner's manager could terminate the contract with him at any time by giving him reasonable notice, but had no power to dismiss the men employed by him, except by terminating the agreement, and the workman could work what hours he pleased, and was not obliged to work at all provided a sufficient amount of stone was sent out, but had to obey the orders of respondent manager as to the place where he was to work or kind of stone he was to send out if such orders were given, and all the tools used by the party were the property of the quarry owners, and the horse also belonged to the quarry owners, but the workman had to look after it and provide it with food, the county court judge may find that the workman was under a con held in one case that the certificated manager of a coal mine, who was paid a yearly salary, and who, although his duties required his presence in the mine, was not required to engage in manual In anlabor, was not a "workman.” 92 For American decision defining this other case a graduate in science, who term, see post, 246. Under the definition clause of the workman's compensation act 1897, the term "workman" included every person who was engaged in an employment to which the act applied, "whether by way had entered the employment of a dye and chemical manufacturing company, under a written agreement for five years' service, and upon terms with regard to tions or improvements in manufactursalary, commission on profits of invenof manual labor or otherwise." This description "made it possible for a man ing discovered by him, restrictions as to be a workman within the meaning of to employment after the termination of the act, although he might not be en- his engagement, and disclosure of matgaged in manual labor," 91 but it was ters relating to the business of the comdeemed to be applicable only to those pany and his own researches, was declasses of employees whose remunera-clared not to be a "workman," although tion could properly be designated as his employment involved manual labor "wages." In this point of view it was on his part.93 tract of service within the meaning of the act. Jones v. Penwyllt Dinas Silica Brick Co. [1913] W. C. & Ins. Rep. (Eng.) 394, 6 B. W. C. C. 492. An old man employed by another workman, who was authorized only to employ a boy, is not in the employment of the employer. M'Clelland v. Todd (1909; Recorder's Ct.) 43 Ir. Law Times, 75, 2 B. W. C. C. 472. In the absence of evidence to show an express hiring, a contract of employment will not be presumed between a hop grower and a girl of seventeen, who accompanied and assisted her aunt in picking hops for the grower, where it was the custom for the heads of family, when engaged in picking hops, to take the entire family with them. Richards v. Pitt (1915) 84 L. J. K. B. N. S. (Eng.) 1417. The county court judge may find that there is no contract of service between the captain of a canal boat and the owners, where he was working under a system whereby he took two thirds of the gross receipts of voyages in one direction, and three quarters in the other, paying for all labor and current expenses out of his portion, and he had power to refuse any cargo offered by the owners as unremunerative, and on the voyage the boat was absolutely under his control. Beck v. Hill & Sons, (1915) 8 B. W. C. C. (Eng.) 592. See also the cases cited in note 14, infra. 90a A coach builder who, after the appointment of a trustee to wind up the business, was appointed by the trustee to help in the winding up, and spend about half an hour every day helping the trustee in supervising the workmen, paying their wages and keeping a day book, is not under a contract of service with the trustee, so as to render the latter liable to contribution under § 8 (1) (c) (iii.) to a coach painter for whom the coach builder was working when he contracted lead poisoning. Pears v. Gibbons [1913] W. C. & Ins. Rep. (Eng.) 469, 6 B. W. C. C. 722. 91 Simpson v. Ebbw Vale Steel, Iron & Coal Co. [1905] 1 K. B. (Eng.) 453, 74 L. J. K. B. N. S. 347, 53 Week. Rep. 390, 92 L. T. N. S. 282, 21 Times L. R. 209. 92 Simpson v. Ebbw Vale Steel, Iron & Coal Co. (Eng.) supra. Collins, M. R., said: "The popular meaning must be given to a definition where we are confronted with such an expression as 'wages,' and we must interpret the act as applying to persons whom, ex hypothesi, the legislature regards as not being in a position to protect themselves. None of these considerations apply to the case of a person holding the position of a certificated manager of a colliery, who comes within a very different category from that of an ordinary workman. I do not say that a person in the position of the deceased is absolutely excluded from the possibility of coming within the act, for it is possible that such a man might in fact work as a workman, though I do not know that such a contingency is at all probable; there might, however, be facts in a particular case from which the conclusion might be drawn that, although the man was a certificated manager, he was also a workman." 93 Bagnall v. Levinstein [1907] 1 K. B. (Eng.) 531, 76 L. J. K. B. N. S. 234, 96 L. T. N. S. 184, 23 Times L. R. 165. The position of Collins, M. R., and Cozens-Hardy, L. J., was that the governing factor in determining whether the man was a workman within the meaning of the act was the question what he was employed to do; and that the judge misdirected himself by not taking into consideration the terms of the employment as disclosed in the agreement, and in treating the performance of manual labor in the discharge of his duties as conclusive that the man was a workman within the meaning of the act. The master of the rolls remarked: "The root of the matter is that each case must be decided in view of that which the person whom it is sought to treat as a workman was employed to do. The learned judge has not dealt quite fairly with the argument as to this man being a Under the definition clause of the existting act of 1906 (§ 13), certain classes of employees are expressly excluded from the scope of the term "workman," and with these exceptions the term means "any person who has entered or works under a contract of service or apprenticeship with an employer, whether by way of manual labor, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing." Under this clause a skilled music teacher is not a workman.94 Neither is a person who, at an exhibition of an airship, master of science. It is true that a person of that description may be employed as a workman, but the governing factor is whether he was employed as a master of science, to get the benefit of his attainments; and if the true inference from the facts is that this was the main purpose of the employment, the case is not prima facie one of employment as a workman, even though the man has to do some manual labor in putting himself in a position to give, his skilled service. The case of Simpson v. Ebbw Vale Steel, Iron & Coal Co. (Eng.) supra, reaffirms the position that the popular meaning must be given to the term 'workman,' and to call a skilled expert a workman is to travel out of the ordinary meaning of that term." Farwell, L. J., dissented on grounds which were thus forcibly stated: "In the present case there is an agreement in writing for service by a man who is a skilled workman. I should be loath to say that education is a bar to success in a claim for compensation under the act. In my view the consideration whether the applicant is a gentleman, or whether his education is good or bad, is not relevant. The case does not, in my opinion, turn so much on the construction of the agreement, though that is an important matter to consider, as on the work that was done by the deceased under it. In the agreement the undertaking of the deceased to obey all orders of those in authority in such work as might be allotted to him is put in the forefront of the matter. Under this agreement the man might be employed in such a way as to be a mere workman, or he might be something more, and which he was must depend on the event. If he had been found sufficiently skilful to be employed in the laboratory, he might have been withdrawn from manual labor; but this, as appears from the evidence of the manager, was not the case. That evidence is that when the man was disabled a foreman did his work, and that he had done no research work during the whole time that he was there; for certainly five sixths of his time he was working as an ordinary though skilled workman. The hours that he worked and the salary that he received appear to me to make no difference, and there is in my opinion nothing in the terms is engaged to explain the various parts of the machine and the exploits of the operator.95 And a salesman is not a workman under the Manitoba statute.96 But a law writer is a workman within the English act.97 So is a professional football player who had entered into a written agreement to serve the defendants for one year at a weekly wage, by playing football when required, with the team of the club, to attend regularly the training and general instruction, and not to engage himself to play football for any other person or club during the stipulated term.98 And a man employed of the agreement which overrides the fact that the man was doing, for the greater part of the time, work which would be done by an ordinary workman." 94 Simmons v. Heath Laundry Co. [1910] 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. 395, 102 L. T. N. S. 210, 26 Times L. R. 326, 54 Sol. Jo. 392, 3 B. W. C. C. 200. CozensHardy, M. R., said that there might be a contract for services, but not a contract for service. 95 Waites v. Franco-British Exhibition (1909) 25 Times L. R. (Eng.) 441. 96 Hewitt v. Hudson's Bay Co. (1910) 20 Manitoba L. Rep. 126, 15 West. L. Rep. (Can.) 372. 97 McKrill v. Howard (1909) 2 B. W. C. C. (Eng.) 460. 98 Walker V. Crystal Palace Football Club [1910] 1 K. B. (Eng.) 87, 79 L. J. K. B. N. S. 229, 101 L. T. N. S. 645, 26 Times L. R. 71, 54 Sol. Jo. 65, 3 B. W. C. C. 53, Ann. Cas. 1913C, 25. Cozens-Hardy, M. R., and Fletcher Moulton, L. J., were of opinion that the contract was one "by way of manual labor," and that it certainly came under the more general words "or otherwise." Farwell, L. J., thus discussed the two points made by the defendants. "The appellants have made two points. They first of all say there is no contract of service with an employer, because the football player is at liberty to exercise his own initiative in playing the game. That appears to me to be no answer. There are many employments in which the workman exercises initiative, but he may or may not be bound to obey the directions of his employer when given to him. If he has no duty to obey them, it may very well be that there is no service, but here not only is the agreement by the player that he will serve, but he also agrees to obey the training and general instructions of the club. I cannot doubt that he is bound to obey any directions which the captain, as the delegate of the club, may give him during the course of the game, that is to say, any direction that is within the terms of his employment as a football player. The other point taken is that he is not a 'workman' within the act. It appears to me that it is impossible for the court to consider the practical utility of the service or |