Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

A will can be revoked any time. The common way is to destroy it. Another way is to dispose during his lifetime of his property. In one of the cases a testator had indorsed on his will in his own handwriting "canceled." Though this was not signed, it was held to be a revocation. In another case a blind testator called for his will which was handed to him. He gave it back with the direction to put it in the fire. Instead of doing so another piece of paper was substituted and burned. This was a downright fraud, and the court justly held that the will had been revoked.

Workmen's Compensation Acts.—Who is entitled to compensation by these acts? The proper test to apply is, whether the employer possessed the power to control the other while at work at the machine or other thing from which the injury arose. Says Honnold: "In the ordinary acceptance of the term, one who is engaged to render services in a particular transaction is not an employee; the term employee embracing continuity of service and excluding those employed for a single and special transaction. It does not usually include physicians, pastors or professional nurses. It may, however, include those not engaged in manual labor, such as a school-teacher. The fact that a workman furnishes tools and materials, or undertakes to do a specified job will not prevent his being an employee. A deaconess, living and working in a hospital and receiving an annuity to cover clothing and expenses, is not an employee of the hospital," nor is an employee of a religious home for the aged who works around the house for which he is not paid any fixed amount. A director of a bank is not an employee within the meaning of the acts under consideration.

To be an employee there must be a contract of service. This is not the same thing as a contract for services. By the latter relationship one is an independent contractor and excluded from the acts. The contract of service need not be actually made, it may be implied, for example, the case of a substitute who is engaged by an employee in accordance with custom. A contract of service is not created by the relation of landlord and tenant, carrier and passenger, bailor and bailee, nor by professional service, nor by forming a partnership, nor by performing manual labor beyond the employer's control. Whether a contract of service arises from charitable work depends on the circumstances of the particular case. State employees are within these acts in some states, and excluded in others, likewise municipal employees. By the federal act the term "laborer" is used to designate men who do work that requires but little skill as distinguished from an artisan who practices an industrial art. The act includes a storekeeper, an inspector who performs no manual labor, a messenger in the government printing office, the master of a dredge, the matron of an Indian school, a transit man, a surveyor, a clerk engaged in office work, an assistant veterinarian, a laboratory assistant, a dock master.

Compensation legislation is not limited to healthy employees. One's previous physical condition is of no consequence in determining the amount of relief to be afforded. Nevertheless, it is a circumstance to be considered in ascertaining, when one has been injured, whether the injury resulted from the work or from his health.

In some of the compensation acts minors are excluded, in other acts he is protected by them. An apprentice who is qualifying himself to operate an elevator is an employee within the Minnesota Act. Many of the acts provide that the term employee shall include every person in the service of another under any contract of hire, except one whose employment is casual, or is not in the usual course of the trade, business profession or occupation of his employer.

Farm laborers are outside these acts in some states. Thus, in Massachusetts "the workmen's compensation act was not intended to confer its advantages upon farm laborers, or to impose its burdens upon farmers." But a farmer may adopt it if he desires. And any contract of insurance made by him under its terms is valid and enforceable. Such an exemption, however, does not except employees working for one who is engaged in a commercial or other non-agricultural enterprise though he be a farmer. Likewise, a farmer carrying on a market garden may procure insurance covering his drivers and helpers employed in distributing the produce of his farm without insuring other employees who are merely farm laborers. The right to compensation is determined by the character of the labor one is actually doing when the accident occurs, rather than by the fact that the employee occasionally does farm labor. Thus, plowing is usually farm labor, but if it is done to make land ready for building a house it is not. If a farmer does not avail himself of the act for all of his employees, he may procure insurance for a limited portion of them. "If there are those," says Chief Justice Rugg, "separable from others by classification and definition, whose labor is more exposed and dangerous, or whom he may desire to protect for any other reason, there is nothing in the act to prevent him from doing so."

Likewise, domestic servants are excluded by some of these acts, who are they? "A household servant is one who dwells under the same roof with the family under circumstances making him a member thereof." And his status is determined rather by his relation to the family than by his relation to the service. Thus, a workman who is hired to tend the furnace, mow the lawn, and do odd jobs about the house, who has a room therein and eats at the family table, is a household servant. On the other hand, a chauffeur who is hired by the month to run the employer's private automobile, but is not living as a member of the family, is not a household servant. In many cases, however, he is one. While it is doubtful whether the test of living in the employer's house is the sole test of household service, it is essential that he is engaged in rendering service in the house, such as cleaning, cooking or washing. On one occasion, a porter in a saloon was sent upstairs by the proprietor to wash the windows in the apartment where the proprietor lived with his family. While thus engaged he fell to the sidewalk and was injured. The court regarded him as a household servant.

Many of the acts exclude from their protection casual employees. This term is a difficult one to define, and has been omitted in many of the acts. Where this is done all employees engaged in the usual course of the trade, business, occupation, or profession of their employer, with some exceptions, receive compensation. Ordinarily, an employment is casual when it is for a single day, or by the hour, but does not apply to one who is employed to render a service that recurs with some regularity. Thus, one who is employed as a workman in a sawmill on such days as it was in operation for four months was not a casual employee. Casual employment in the Connecticut act means occasional or incidental employment. In California, if the length of employment is less than a week it is casual, even though contrary to agreement the employee took more than a week to do the work for which he was hired, and which a skillful employee could have finished within a week.

"The question whether an employment is casual must be determined with reference to the scope and purpose of the hiring rather than with sole regard to the duration and regularity of the service. One who enters into a contract of employment for an entire season is not a casual employee merely because he may be required to work for only short and irregular periods." Thus, a longshoreman who is employed at a certain sum per hour to help load a ship, having frequently rendered a similar service on other occasions, is not a casual employee; nor is one who keeps machinery and boats in order at an amusement park; nor is a boy who is called at irregular intervals for service in a butcher's shop when extra help is needed, or in the absence of a regular employee; nor is one who is employed during a packing season to drive for a packer whenever he is needed.

The compensation law does not apply to independent contractors. It is difficult, however, to draw the line in many cases. Generally, an independent contractor is one 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. A test that is sometimes applied is, who has the right to direct what shall be done and when and how, and who has the right of general control. When, therefore, one exercises an independent employment, selects his own help and has the control of them, and the method of conducting the work, he is an independent contractor. Again, he may change his relation for a time, and become an employee, or he may be a contractor for a part of his service and an employee for a part. Thus, one who was injured while operating a launch to bring supplies to a dredge for his employer was an employee and not an independent contractor, though he was one in conducting the work of dredging. Likewise, a physician who is employed on a salary by another physician, who in turn is serving a manufactory, is an employee of the latter and not an independent contractor, though he is still engaged to some extent in his own private practice.