could have completed the work in less than a week." Employments otherwise casual may cease to be casual by mere lapse of time. The test of the course of business of a corporation is not the work which the corporation says it is doing, but the work which it actually does as a usual, customary, or repeated matter. Where it undertakes the work of repairing its stockholders' buildings repeatedly, it is doing that work, regardless of whether it be consistent with its name.80 Ordinary janitor work is in the usual course of business of any employer who conducts his business in any building which needs to be cleaned or with machinery which needs occasionally to be shifted.81

The Iowa Act, resembling that of California, is peculiar, in that it defines "casual employment" to refer to a person whose employment is purely casual and not for the purpose of the employer's trade or business. The statutes of most of the states use the word "or" in place of the word "and." No employers are excluded from

venscroft v. Packard, 3 Cal. I. A. C. Dec. 24. Where a machinist is employed to go out to the ranch of his employer with his tools and put the caterpillar traction engine in repair for operation during the season, and is so engaged for a period of ten days, such employment is not casual. Snow v. Harris, 2 Cal. I. A. C. Dec. 393.

78 Where at the time of entering upon a job it appears that the work will probably last more than one week, and the work does so last, the employment is not casual, even though a more skilled employé would have completed it within the week. Peterson v. Pellasco, 2 Cal. I. A. C. Dec. 199.

79 Blaine v. McKinsey, 1 Cal. I. A. C. Dec. 641. The employment of a carpenter hired by the job to build a cottage was not casual, where he had worked longer than one week. Id. Casual labor ceases to be casual if it lasts more than one week. Crosby v. Strong, 2 Cal. I. A. C. Dec. 408.

80 English v. Cain, 2 Cal. I. A. C. Dec. 399.

81 Where the manager of a creamery, needing help in putting away heavy machinery, calls in a passer-by to help him for fifteen or twenty minutes at a small remuneration, and the passer-by is injured while so doing, he is entitled to compensation. Ginther v. Knickerbocker Co., 1 Cal. I. A. C. Dec. 458.

the provisions of the Iowa Act unless the employment is not only purely casual, but also not for the purpose of the employer's trade or business.82 A laborer picked up on the street to repair the porch of a doctor's residence is not within this Act, where the repair work is unimportant and requires but a few hours' labor.83 The employment of a man to collect cream from farmers and bring it to the creamery, though being for one day only, and hence casual, was in the regular course of the employer's business, and therefore within the scope of the Minnesota Act.84

§ 66. Independent contractor

The Compensation Law does not apply where the injured person is an independent contractor, and the relation of employer and employé does not exist.85 It is not possible to lay down a hard and fast general rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employé or independent contractor. Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together. A contractor is ordinarily one who carries on an independent employment and is responsible for the results of his work, one whose contract relates to a given piece of work for a given price. These characteristics, however, though very suggestive, are not necessarily controlling.88 Generally speaking, an "independent contractor" is one

82 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 6.

83 Id.

84 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 13, p. 31.

87

85 In re Sarah Johns et al., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 172; Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 7.

The law of independent contractor was in no wise changed by the enactment of the Workmen's Compensation Act of 1913. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 70.

86 McCoy v. Kirkpatrick, 1 Cal. I. A. C. Dec. 599. 87 Id.; Wowinski v. Vito, 1 Conn. Comp. Dec. 629. 88 Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328.

who exercises an independent employment and contracts to do a piece of work according to his own method, without being subject to the control of the employer, save as to the results of his work.89

S An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom the work is done, and is entitled to use his own discretion in things not mentioned in the plans and specifications. Rep. Nev. Indus. Com. 1913-14, p. 25.

The test of the relationship of employer and employé is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. Tuttle v. Embury-Martin Lumber Co. (Mich.) 158 N. W. $75.

The services required all the applicant's time, and he was not at liberty ・ to do teaming for any other employer. The respondent, through its superintendent and foremen, directed the loading and place of hauling and unloading, and in one instance directed the discharge of a teamster employed by the applicant, and the instruction was complied with. Otherwise, the applicant employed the teamster, and paid him himself, and took care of the teams, and furnished his own barn and outfit for the teaming. He and his teamster reported for work at 7 o'clock in the morning, and used the team the full day, and sometimes worked overtime. He had no definite term of service; no definite agreement as to any particular amount of hauling to be done. He was subject to discharge at any time. Whatever the contract of service might have teen is left very largely to inference. Upon these facts, the question as to whether the applicant was an employé for hire, or a contractor, was a question of law, and it was decided that he was an employé, and entitled to compensation. Mantz v. Falk Co., Rep. Wis. Indus. Com. 1914-15, p. 15. While members of an orchestra would usually be employés, their contract may make them independent contractors. (Code Supp. 1913, § 2477m16 [b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 18. Where it appeared that B. and A. were copartners in the teaming business, and A. rented a team, with B. as driver, to C., and C. supposed that B. was an employé of A. sent with the team, and C. made all of the financial arrangements with A., and paid A. for the use of both team and driver, A. later dividing the earnings with B., the Commission held that B. was not an employé of C., but an independent contractor, either singly or jointly with A. and that C. was not liable for compensation for injuries received by B. while so working for C. Sayers v. Girard, 1 Cal. I. A. C. Dec. 352.

In Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637, where a janitor was employed by three establishments, including a church, concurrently, and also dug and tended graves in the cemetery for small sums, he was an HON.COMP.-14

One test, sometimes said to be decisive, is as to who has the right to direct what shall be done, and when and how it shall be done,

employé in regard to the janitor work, and a contractor in respect to the digging and care of graves.

Persons held to be contractors and not workmen: A physician, since he is free from the control or direction of the person employing him. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 15. Ohio. One who contracts with another to tear down and remove a stack, the contract providing that he shall furnish his own tools and appliances, hire his own help, and deliver the materials at a specified place for a stipulated sum of money; the person for whom the work was done retaining no power of supervision over the manner of doing the work. In re Sarah Johns, vol. 1, No. 7, Bul. Ohio Indus. Com., p. 172. California. One engaged to cut ties at a certain price per tie on land of defendant, where he was at liberty to employ and did employ labor on his own account, without the consent of the owner of the land, and without such owner having any control over the men so employed, or of the hours of labor of the applicant himself. Rose v. Pickrell, 1 Cal. I. A. C. Dec. 85. 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. Baker v. Armstrong, 2 Cal. I. A. C. Dec. 1057. An applicant engaged to cut and saw wood for the defendant, and having the power to employ other men to help him, the defendant having no control over the applicant or those employed by him, as to who should be employed, or their hours of labor, but only as to the length of the wood sawed, and the applicant also having similar arrangements with other parties to saw wood for them on the same terms. Gilmore v. Sexton, 1 Cal. I. A. C. Dec. 257. 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 hire all help, and of all details, except as to what is to be hauled, teaming as such, being his reglar business, independent and distinctive from the regular business of his principals, he supplying and controlling the entire means of producing the reKult for which he is to be paid. (Comp. Act, §§ 13, 14) McCoy v. Kirkpatrick, 1 Cal. I. A. C. Dec. 599. The husband of applicant, where he had purchased a laundry route from the former owner and with a motor wagon of his own was carrying on the business of collecting laundry for the defendant, and being paid 30 per cent. of the receipts by the laundry, and it appeared that he was under no direction or control of the laundry as to hours of work and field fo. soliciting, and could even sell his route to another driver, or transfer the business to another laundry, and that he bore the losses due to bad accounts. Monroe v. Yosemite Laundry Co., 2 Cal. I. A. C. Dec. 718. A member of a copartiership working under a subcontractor. Kasovitch v. Wattis Co., 2 Cal. I. A. C. Dec. 319. Connecticut. One who agreed to blast and break up

90

who has the right to the general control. When the doing of specific work is intrusted to one who exercises an independent em

stone to be used by the respondents for building purposes, receiving wages per day, but using his own tools and providing the dynamite and assistants used, and being under no direction or duty to receive directions from the respondent. Wowinski v. Vito, 1 Conn. Comp. Dec. 629. 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 some materials furnished by him, and doing the work from general plans, without any supervision as to methods. Crittenden v. Robbins, 1 Conn. Comp. Dec. 523. One who agreed to cut wood on the defendant's land, at a fixed rate per cord, using his own discretion as to the work; the defendants having no authority or supervision as to hours, methods, tools, or persons employed. Snow v. Winkler, 1 Conn. Comp. Dec. 76. 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. Benoit v. Bushnell, 1 Conn. Comp. Dec. 172 (superior court reversing the commissioner). A painter who agreed to paint the house of the respondent, furnishing the ladders and an assistant part of the time, making a small profit on the wages of such assistant, the respondent paying for the materials, and for the work by the day or hour, but having no power of direction or supervision beyond requiring a finished job within a reasonable time. Wright v. Barnes, 1 Conn. Comp. Dec. 248. One who had agreed with the respondent to build a silo for $20, respondent to furnish the foundation, the materials, and a helper, but having no directive rights over the work. Boyington v. Stoddard, 1 Conn. Comp. Dec. 103. New York. One whose business was mov

90 A workman was employed to do certain work in the development of land, the employer furnishing the explosives and most of the tools used. The workman kept a team of horses and worked sometimes with his team. For five or six years prior to the injury he had done odd jobs for the same employer, at times as often as two or three times a week. He had the privilege of engaging help, and in fact employed men to assist him, and at the end of the week gave the employer the pay roll and received wages for these men, which he turned over to them. He was paid for his own work by the day at irregular times, receiving pay for his team when it was used, but no profit on the wages of men employed by him. It did not appear that he was responsible for the manner in which the work was done, or that the employer did not retain control over the extra men hired, as well as over the workman. Either party was at liberty to withdraw from the arrangement without loss from breach of contract. The court held that the relation was that of employer and employé, and not that of independent contractor. Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328.