IOWA. ATTORNEY- GEEERAL''S OFFICE WORKMEN'S COMPENSATION, I915 • ajnrnpll Cam Bcl^aal ^ihtnt^ If CI A a. n Cornell University Library KFI4542.A56A8 1915 ..Workmen's compensation : 3 1924 024 672 937 Workmen's CompensairQn Legal Opinions on Various Phases of the Iowa Workmen's Compensation Act HENRY E. SAMPSON Assistant Attorney General of Iowa Special Counsel to the Iowa Indastrial Goaunissioner Issued by Iowa Industrial Commissioner WARREN GARST. Commissioner 1915 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024672937 Workmen's Compensation Legal Opinions on Various Phases of the Iowa Workmen's Compensation Act By HENRY E. SAMPSON Assistant Attorney General of Iowa Special Counsel to the Iowa Industrial Commissioner 46372 m Issued by Iowa Industrial Commissioner WARREN GARST. Commissioner 1915 Legal Opinions on Various Phases of the Iowa Workmen's Compensation Act. Note. — The public has become greatly interested in the subject of compensation legislation as a method for improving some con- ditions which have prevailed under the common law system and for solving the problem of dealing justly with the unfortunate victims of our industrial life. Because of the new and unusual character of this legislation and because of the general interest in the subject, numerous requests for information are being made upon our department and upon the Department of Justice. As a convenient manner in which to supply this demand for informa- tion, a few of the more important legal opinions on the subject by Henry E. Sampson, Assistant Attorney General and special counsel to the Iowa Industrial Commissioner, have been placed in this form for general distribution. An index has been placed in the back of the work, so arranged as to give first a reference to the sections in the supplement to the code, 1913; second, a reference to the sections in chapter 147, acts 35th Gr. A., and third a reference to the pages of this pamphlet. — ^Waeeen Garst, Iowa Industrial Commissioner. The Iowa Law is Optional. Compensation Law Optional — Insurance Required — Members OP Partnership not Employes — Employer Primarily Liable, Though Insured. May 7, 1914. Shaver Carriage Co., Des Moines, Iowa. Gentlemen: Replying to your letter of the 5th instant ad- dressed to the attorney general will say that the last legislature of Iowa enacted what is known as the workmen's compensation act, same being found in Chapter 8-A, Title XII, Supplement to the Code, 1913. The law is optional or elective, and the employer can avail him- self of its provisions or elect to reject same, as he sees fit. It will 4 LEGAL OPINIONS ON VARIOUS PHASES OP THE be conclusively presumed that he has elected to be governed by its provisions unless he rejects the same in accordance with the requirements of the act. In the event he elects to reject the act, or fails to provide the insurance required under Section 2477-m41, Supplement to the Code, 1913, he will be liable to his injured em- ployes the same as under the common law, as modified by statute, and he can no longer plead what is commonly known as the three common law defenses, that is, contributory negligence, fellow serv- ant rule, and assumption of risk. He will also be required to re- but the presumption that the injury to his employe was the di- rect result and growing out of the negligence of the employer, and that such negligence was the approximate cause of the injury. If you prefer to avail yourselves of the compensation features of this act, you must either insure your liability under the act in some company approved by the insurance department of Iowa, or comply with Section 2477-m49, Supplement to the Code, 1913, wherein it is provided that you need not comply with said Sec- tion 2477-m41 requiring insurance if you furnish satisfactory proof to the insurance department and to the Iowa industrial com- missioner of your solvency and financial ability to pay the com- pensation required under the act. Answering your second question will say that the word "em- ploye" as defined by the legislature excludes one who holds an official position or stands in a representative capacity of the em- ployer. Under such a definition I am of the opinion that a part- ner in a partnership and a managing officer in a corporation would be considered as persons standing in "a representative capacity," and therefore not entitled to compensation under the act. Part- ners are employers rather than employes. Employes are no doubt entitled to compensation even though their wages are fixed in part by the profits of the concern for which they work. Answering your third question will say that an employer is not relieved from liability to pay compensation to his employes according to the terms of the act even though he provides insur- ance as required under Section 2477-m41, the purpose of the in- surance being to insure certain and prompt payment, and to re- imburse him for any and all amounts which he has so paid. He is primarily liable. Tours very truly, Heney E. Sampson, Assistant Attorney General. IOWA WORKMEN'S COMPENSATION ACT 5 Certain Employes Excluded. Compensation Law Applicable to Employees of One ok More Employes — Word "Employes" Defined — Classes op Em- ployes Excluded. M. H. Cai.deewood, Eldridge, Iowa. May 11, 1914. Dear Sir : Replying to your letter of the 9tli instant addressed to Attorney General Cosson will say that the Iowa workmen's compensation act, enacted by the last general assembly, is op- tional or elective with both the employer and the employe. Un- less they take the affirmative action required under the statute, it will be conclusively presumed that they prefer to avail them- selves of the provisions of the act. The only important class of employers excluded from the act is the class engaged in farm or agricultural pursuits. The stat- utes of some states limit the law to those employers having five or more employes, but the Iowa act does not contain such a pro- vision, and therefore applies to employers having one or more em- ployes. The employers mentioned in your letter as having one or two employes are therefore included within the provisions of this act unless they, by affirmative action, elect to reject its provisions. The word "employe" is defined by the act to mean any person who has entered into the employment of or works under contract of service, express or implied, except: (a) A person whose employment is purely casual and not for the purpose of the employer's trade or business; (b) A person engaged in clerical work, but clerical work shall not include one who may be subjected to the hazards of the business ; (c) A person who holds an official position or stands in a rep- resentative capacity of the employer; (d) An official elected or appointed by the city or town; (e) A public contractor doing work for such city or town; (f) Household or domestic servants; (g) Laborers engaged in farm or agricultural pursuits, (h) General contractors. Youi r very truly, Heney E. Sampson, Assistant Attorney General. 6 LEGAL OPINIONS ON VARIOUS PHASES OF THE Casual Employment. Casual Employment Discussed — Two Essential Elements — Employes Not Excluded Except Where Both Elements P^==^^^^- September 13, 1914. C. J. Duncan, Vice Pres., Iowa Mutual Liability Co., Cedar Kapids, Iowa. Deae Sib : Replying to your letter of September 7th, addressed to Hon. Warren Garst, will say that the Iowa workmen's com- pensation act 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 other states used the word "or" in place of the word "and." For that reason no employers are excluded from the provisions of the Iowa workmen's compensation act unless there are two essential elements present: First, that the employ- ment is purely casual, that is, indefinite, uncertain and temporary, and, second, that such employment is not for the purpose of the employer's trade or business. In other words, if the employment is not of the casual character, it is not necessary that the employ- ment be for the purpose of the employer's trade or business, or, on the other hand, if the employment is for the employer's trade or business, it is not necessary that such employment be of a casual character. To repeat, employers come within the provisions of the Iowa workmen's compensation act except in those cases where both of the essential elements mentioned above are present. In view of the foregoing, it is my judgment that an employe working under the conditions mentioned in your letter might be' included within the provisions of the Iowa workmen's compensa- tion act, and, in fact, would be included except where the employ- ment was clearly of the casual character and in no way connected with the employer's trade or business. To illustrate, a laborer picked up on the street to repair a porch of the residence of a doctor, which repair job was unimportant and required but a few hours labor, would be excluded from the provisions of the Iowa workmen's compensation act under the exception that he was "a person whose employment was purely casual and not for the pur- pose of the employer's trade or business." Tours truly, Henry E. Sampson, As.iistant Attorney General. IOWA WORKMEN'S COMPENSATION ACT 7 Counties as Employers. Counties Are Employees Under the Act — Public Oppicees and Public Conteactoes Not Employes — County Engineees and Laborees Employed by County Aee Employes — County Must Carey iNSxntANCE Unless Relieved From So Doing. June 3, 1914. State Highway Commission, Ames, Iowa. Gentlemen : Replying to your letter of June 1st relative to the Iowa workmen's compensation act will say that this law is found in Chapter 8-A, Title XII, Supplement to the Code, 1913. The terms, conditions and provisions of this act are compulsory and obligatory upon counties and the employes thereof (Section 2477-m-b) . Men employed by the day and engaged in road, culvert or bridge work would be employes within the definition found in Section 2477-ml6b of the act and hence the county would be li- able for compensation for injuries to employes of this character and would be required to provide the insurance specified in Sec- tion 2477-m41 for the protection of such employes unless they are relieved from furnishing such insurance by complying with the provisions of Section 2477-m49. The terms "employe" and "workman," as used in the act, are defined in Section 2477-ml6-b, and as so defined expressly exclude public ofiieials, elected or appointed, and therefore members of the board of supervisors would not be included within the terms of the workmen's compensation act. Section 1527-s3, Supplement to the Code, 1913, provides for the employment by the board of supervisors of a county engineer, his term of office and compensation to be fixed by such board. It is my opinion that the county engineer is not a public official within the meaning of Section 2477-ml6-b, and that he is not excluded from the provisions of said act. It is further provided in Section 2477-ml6-b of the act that pub- lic contractors who have contracts with counties are not to be considered as employes' thereof and hence the county contracting with such public contractors would not be liable to the contractors for compensation in case of personal injury or to the employes of such contractors. In such a case the public contractor would be an employer within the meaning of the act and must, unless he elects 8 LEGAL OPINIONS ON VARIOUS PHASES* OF THE to reject the provisions of such act, compensate his injured em- ployes and carry insurance for their protection in accordance with the provisions of Section 2477-m41. It is my opinion that members of the board of supervisors and public contractors contracting with such county are not included within the provisions of the workmen's compensation act, but that county engineers and employes working by the day for such counties are included within the terms and provisions of such act. By the provisions of Section 2477-m41, counties, as well as other employers, are required to insure their liability under such act in some insurance company approved by the state department of insurance and should they fail so to do, they are liable in dam- ages to an injured employe who sustains personal injury which arises out of and in the course of his employment, and the county is no longer permitted to rely upon what is commonly known as the three common law defenses. This is a risk which few counties will care to assume. Section 2477-m49 provides that employers, including counties, may furnish proof satisfactory to the insurance department of Iowa and to the Iowa industrial commissioner of their solvency and financial ability to pay the .compensation provided for under the act, and when they have so done they will be relieved of the necessity of providing the insurance required under Section 2477- m41. This will amount to the county carrying its own insurance. If they do not care to do this, they can secure insurance in any stock company or mutual association which has been approved by the commissioner of insurance. Yours very truly, Henry E. Sampson, Assistant Attorney General. Cities as Employers. Cities and Towns Are Employers — Street Commissioner, Man- ager OP "Waterworks^ and Others Are Employes — Cities Must Carry Insurance, or be Relieved Therefrom by In- dustrial Commissioner and Commissioner op Insurance. April 24, 1914. W. A. Templeton, Wheaton, Iowa. Dear Sir: Your letter of the 18th instant addressed to Frank 0. Pierce has been forwarded to me for attention. ; IOWA WORKMEN'S COMPENSATION ACT 'ft In reply to, game will say that the last legislature enacted what is generally known as the workmen 's compensation act, which you will find in Chapter 8-A, Title XII, Supplement to the Code, 1913. Section 2477-m-b expressly provides that the terms, conditions and provisions of the act shall be exclusive, compulsory and obligatory upon all municipal corporations, cities under special charter and cities under the commission form of government, and also upon all the employes thereof. The definition of "employe" is broad enough to include your city marshal, your street commissioner and your manager in charge of the waterworks, and would of course include a person employed to perform all of these duties. Section 2477-m41 provides that in order to avoid certain pen- alties therein named, it will be necessary for cities and towns to insure their liability under the act, but Section 24:77-m49 expressly provides that cities and towns need not provide such insurance if they furnish satisfactory proof to the insurance department and the Iowa industrial commissicner of the city's or town's solvency or financial ability to pay the compensation or benefits provided for by the act and to make such payments to the parties when en- titled thereto. It is my understanding that Hon. Warren Garst, Iowa indus- trial commissioner, expects to provide blanks upon which you can make a showing of the financial condition of the town of which you are clerk. Tours very truly, Heney E. Sampson, Assistant Attorney General. Farmers and The Act. Compensation Act Does not Apply to Farmers — Farmers Can Make Compensation Act A Part of Their Contract With Their Hired Help, and Then Insure Their Liability Under Such Contract. September 13, 1915. George F. Coar, 1313 Insurance Exchange Bldg., Chicago, 111. Dear Sir: Your letter of September 8th addressed to -Hon. Warren Garst referring to the matter of Juergon Olderog has 10 LEGAL OPINIONS ON VARIOUS PHASES OF THE been referred to me for attention and in reply to same will say that the Iowa workmen's compensation act, as it appears in Chapter 8- A, Title XII, Supplement to the Code, 1913, does not apply to farmers or those engaged in agricultural pursuits and • that no provision is made in said statute whereby farmers and their em- ployes can come within the provisions of such act even by notice of acceptance of such act by the farmer. However, there can be no objection to the farmer and his farm hand including in the contract of employment a special term pro- \'iding in effect that the liability of the farmer to his farm hand for all injuries sustained would be governed, controlled and lim- ited by the terms and conditions set forth in the chapter of the law referred to above. If such a provision were inserted in the contract of employment I can see no objection to your company entering into a contract with the farmer by which you agree to indemnify him for any amount which he is required to pay out under his contract of service. You would insure his liability under the contract rather than under the statute. All of these arrange- ments, however, would be purely matters of contract between the farmer and his farm hand and between the farmer and your com- pany. In view of the fact that no provision is made for the Iowa work- men's compensation act applying to farmers and those engaged in agricultural pursuits, the Iowa industrial commission would have nothing to do in regard to any such contract which you might make with the farmers of Iowa. Tours truly, Henry E. Sampson, Assistant Attorney General. IOWA WORKMEN'S COMPENSATION ACT 11 Threshing Machine Operators. Operators of Threshing Machines Upon A Commercial Basis Are Within the Act When They Thresh Other People's Grain for Hire — A Farmer Operating His Own Threshing Machine and Using Same Exclusively for His Own Private Use Is Engaged In an Agricultural Pursuit, and There- fore Excluded. July 9, 1914. DuKEHART Machinery Company, Des Moines, Iowa. Gentlemen: You ask whether or not the operators of thresh- ing machines and their employes are covered hy the Iowa work- men's compensation act. This statute expressly excludes "farm or other laborers en- gaged in agricultural pursuits," and so the answer to your ques- tion depends upon whether or not the employes of these thresh- ing machine operators are farm laborers engaged in agricultural pursuits. If the employer is operating a threshing machine as an independent and separate business and is separating grain for others for hire, it is my opinion that he is engaged in a commer- cial enterprise that cannot properly be considered as farming or as being engaged in an agricultural pursuit and that both he and his employes are covered by the compensation act. If, however, a farmer buys a threshing machine and uses the same exclusively for his private use and does not separate the grain of his neigh- bors fcr hire, it may more properly be said that he is not engaged in a commercial enterprise and that his employes while helping with the threshing are still engaged as farm laborers. The two cases represent different occupations, and the former would be covered by the act and the latter would be excluded from its provisions. Tours very truly, Henry B. Sampson, Assistant Attorney General. 12 LEGAL OPINIONS ON VARIOUS PHASES OF THE S;gar Mill Proprietcrs. Owner op A Sugar Mill "Who Goes About Country Operating Same for Hire Is Engaged In A Commercial Enterprise AND Is Not One "Engaged In An Agricultural Pursuit." November 27, 1914. Walter J. Fluent, Charles City, Iowa. Dear Sir: Tour letter of November 23d addressed to Hon. "Warren Garst has been handed to me for attention, and in reply to same will say that the Iowa workmen's compensation act does not apply to or include "farm or other laborers engaged in agri- cultural pursuits." (Section 24:77-m (a), Supplement to the Code, 1913.) It is my opinion, however, that when a farmer purchases a sugar cane mill and goes about the community grinding cane for those who employ him for a consideration to do this character of work he is at the time engaged in a commercial enterprise which cannot properly be considered farm work or as an agri- cultural pursuit. The term "agricultural pursuit" is so defined and limited as to apply to those engaged in the tillage of the soil. The man who is operating a sugar cane mill for hire is not at the time engaged in the tillage of the soil any more than is the owner of a threshing machine who goes about the country threshing grain for those who employ him. The employe who is working for the owner or operator of a sugar cane mill is there- fore in my opinion not excluded from the compensation act on the grcund that he is a farm laborer. In the event one of the employes of an operator of a sugar cane mill is injured in the course of and -arising out of his employment while so employed upon the place of another he is entitled to compensation according to the provisions of the Iowa workmen's compensation act. Yours truly, Henry E. Sampson, Assistant Attorney General. IOWA WORKMEN'S COMPENSATION ACT 13 Co-operative Companiss. Farmers' Co-operative Creamery Companies Are Employers AND lIusT Provide Insurance or Be Believed From So Doing. June 29, 1914. Farmers' Co-operative Creamery Company, Greene, Iowa. Gentlemen: Replying to your letter of tte 27tli instant ad- dressed to the attorney general will say that from the information contained in your letter it is my opinion that you are an employer within the meaning of the Iowa workmen's compensation act and that unless you reject the same in accordance with the provisions thereof, you will be bound by its terms. Secticn 2477-m41, Supplement to the Code, 1913, requires that you must insure your liability thereunder in some insurance com- pany approved by the insurance department of Iowa. Provision is made, however, in section 2477-m49 whereby you can carry your own insurance if you are able to satisfy the insurance depart- ment and the industrial commissioner of Iowa of your financial ability to pay the compensation required under the act and at tha times provided for therein. Yours very truly, Henry E. Sampson, Assistant Attorney General. Charitable Institutions. Charitable Institutions Are Employers and Must Insure Their Liability Unless Relieved as Provided in- the Stat- ute. June 2S, 1914. Phil Hoffmann, Oskalocsa, Iowa. Dear Sir : Replying to your letter of the 25th instant addressed to the attorney general will say that while this department has not yet prepared a formal opinion upon the question submitted in your letter, yet it is my personal opinion that the Iowa workmen's compensation act applies to and includes charitable institutions such as public hospitals. 14 LEGAL OPINIONS ON VARIOUS PHASES OF THE The law as originally drafted was only intended to apply to in- dustrial employments carried on by employers for pecuniary gain, but these provisions were afterwards stricken out and the law as finally passed was given a much wider scope and as it now stands includes practically all occupations except farming. Section 2477-m41, Supplement to the Code, 1913, requires that all employers must insure their liability with some insurance com- pany approved by the insurance department of Iowa and should you fail to do so your status would be not unlike what it would be were you to reject the compensation features of the act. This department cannot advise you as to whether or not you should reject the act or avail yourself of its privileges. Yours very truly, Henry E. Sampson, Assistant Attorney General. Professional Nurse Not An Employe. August 18, 1914. Hon. "Wareen Gaest, Iowa Industrial Commissioner. Dear Sir: The proposition presented by you involves the single legal question of whether or not a professional nurse is an employe within the definition of Section 2477-ml6, Supplement to the Code, 1913. Answering your inquiry will say that in my judgment a profes- sional nurse performing her duties with a skill which is the result of training in that profession is not a servant but rather one who renders a personal service to an employer in pursuit of an inde- pendent calling. In this view I am supported by the opinion of the court in the case of Parker vs. Seasongood, 152 Fed., 583, and also by the author of Moll in his work on "Independent contractors and employers' liability." Yours very truly, Henry E. Sampson, Assistant Attorney General. IOWA "WORKMEN'S COMPENSATION ACT iS Physician Is Not An Employe. July 19, 1914. Hon. Warren Garst, Iowa Industrial Commissioner. Dear Sir: You ask to be advised whether or not a practicing physician is an employe, within the meaning of the Iowa work- men's compensation act. Answering your inquiry will say that a physician is engaged in a distinct calling, one in which he is entirely free from the control of his employer. (See the case of Pearl vs. West End Railway Company, 49 L. R. A., 846.) A physician is, in fact, an independent contractor free from the control or direction of the person employing him. (See York vs. C. M. & St. P. Ry. Co., 98 Iowa, 544; also O'Brien vs. Cunard Steamship Co., 13 L. R. A., 329 and Allan vs. State Steamship Co., 15 L. R. A., 166.) In view of the foregoing authorities, it is my judgment that your question should be answered in the negative and that a physician is not an employe within the meaning of the Iowa work- men's compensation act. Yours very truly, Henry E. Sampson, Assistant Attorney General. Church Pastors. Pastors of Churches Are Not Employes. July 20, 1914. Wm. p. Wiley, 705 Security Bank Bldg., Sioux City, Iowa. Dear Sir: Answering your letter of the 14th instant will say that in my judgment pastors of churches are not workmen within the meaning of the Iowa workmen's compensation act. Yours very truly, Henry E. Sampson, Assistant Attorney General. 16 LEGAL OPINIONS ON VARIOUS PHASES OF THE July 11, 1914. Public Lecturers. Public Lecturees Are Not "Workmen." s. m, holladat, Youngerman Bldg., Des Moines, Iowa., Dear Sir: Replying to your letter of the 9th instant addressed to the attorney general will say that in my judgment lecturers on your circuit are not employes within the meaning of the Iowa workmen's compensation act and that you would not be obliged to pay them the compensation required under such act or to carry insurance as contemplated by Section 2477-m41, Supplement to the Code, 1913. Yours very truly, Henry E. Sampson, Assistant Attorney General. Chauifeurs. Chauffeurs Are Employees, Unless Employed Under Such Circumstances as to Bring Them Within the Excluded Class of "Domestic or Household Servants" — "Domestic Servants" Defined. May 28, 1914. Hon. Warren Garst, Iowa Industrial Commissioner. Dear Sir: You ask to be advised whether or not a chauffeur employed to operate the employer's private automobile for the pleasure of the employer and his family is covered by the Iowa workmen's compensation act. You state that the chauffeur is employed by the month and that he does not live with the employer under such circumstances as to constitute him a member of the family. You also ask to be advised whether or not a man employed to tend furnace, mow the lawn and perform various services about the house and premises is covered by the Iowa workmen's com- pensation act. You state that this man is the husband of the matron of the house, that he and his wife are provided with a room in the house, that they sleep in that room, and that he and his wife eat at the family table. IOWA WORKMEN'S COMPENSATION ACT 17 It is my opinion that the chauffeur would be included within the act for the reason that he does not belong to any one of the several classes of workmen excluded from the act either by the provisions of Section 2477-m (a), or 2477-ml6-b, Supplement tO the Code, 1913. The man employed to tend the furnace and work about the house would, in my opinion, be excluded from the act because he is a household servant within the meaning of Section 2477- m (a). Section 2477-m (a), expressly provides that the Iowa workmen's compensation act shall not apply, among other classes, to (a) Domestic servants; (b) Household servants. The term " domestic servant" means one who lives and works in the house and does not include a servant whose employment is out of doors and not in the house. Bouvier in his law diction- ary says that the term "domestic" does not extend to workmen and laborers employed out of doors. Another writer has said that domestic servants are those who receive wages and stay in the house of the person paying and employing them for their services. They are sometimes referred to as menial servants, who are defined as persons retained by others to live within the walls of the house and to perform the work of the household. A household servant is a servant dwelling under the same roof and under circumstances which make him a member of the family. The word "household" comes from the Latin word "familia." . It is generally used to denote persons dwelling together and com- posing a family. Webster defines the household as those who dwell under -the same roof and constitute a family. The status of a household servant is determined rather by his relation to the family than by the character of the service which he performs. If he is taken into the family and occupies a relation such that he could properly be considered a member of that household, then he eouM with propriety be considered a household servant. I do not understand that private chauffeurs occupy this close relation- ship with the employer. He usually lives in another house than bis employer; he boards at a different table; his laundry is done at a piijiblic laundry, his clothes are mended at a public tailor shop, and he does not sustain such close relationship with the employ&r and his family as would make him a member of the 18 LEGAL OPINIONS ON VARIOUS PHASES OF THE family. In view of the way in which these terms have been defined by the courts, it is my opinion that it would be improper to consider the private chauffeur as a household servant within the meaning of the Iowa workmen's compensation act and is therefore covered by the act, but that on the other hand, it. would be entirely proper to consider a man who worked about the house and lived with the family in the house as a household servant within the meaning of the Iowa workmen's compensation act, and therefore excluded from the act. Yours very truly, Henry E. Sampson, Assistant Attorney General. Servants. Servants, Who Are — Members of Paid Orchestra Permanently Engaged for Theatre, Are Employes. November 16, 1914. L. W. "Warpield, Special Agent, Travelers Insurance Company, Hippee Bldg, Des Moines, Iowa. Dear Sir : You ask to be advised as to whether or not musicians regularly employed to play in theater orchestras are employes within the meaning of Section 2477-ml6-b, Supplement to the Code, 1913. I understand that the members of these orchestras are employed by the management, of the theater for a definite period at a regu- larly fixed salary and that they are subject to the direction and control of the theater management. I also understand that in many cases they are members of the musicians' labor union. Whether or not these members of the orchestra are employes within the meaning of the Iowa workmen's compensation act de- pends upon the relationship which exists between them and their employer. They are not employes unless there is the relationship of master and servant which includes the right of the employer tO' control the way in which the services of such employes are to be rendered. One cannot be a workman or employe unless there is a contract of service, and it should be remembered that a contract of service is not a contract for services. The former relationship con- IOWA WORKMEN'S COMPENSATION ACT 19 stitutes one an employe and brings him within the purview of the law ; the latter relationship makes one an independent contractor, or in other words, a self-serving employe and excludes him from the purview of the law. The courts have frequently decided who are and who are not employes and who are "servants," and in their opinions we find such language as the following: "A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master." "A servant is one whb dees work under the direction of another, who not only prescribes to the workman the nature of his work, but directs his time as any moment may direct, the means also, or, as it has been put, retains the power of controlling the work." "The real test by which to determine whether a person is acting as servant of another is to ascertain whether, at the time the injury was inflicted, he was subject to such person's order and control and so liable to be discharged by him for disobedience of orders or mis- conduct. ' ' "Within the ordinary acceptation of the term one who is en- gaged to render services in a particular transaction is not an em- ploye. The word implies continued service and excludes those em- ployed for a single transaction." "The term 'employe' indicates persons hired to work for wages as the employer may direct, and does not embrace the acts of the employment of a person carrying on a distinct trade or calling to perform services independent of the control of the employer." "An employe is a person bound in some degree at least to the duties of a servant and not a mere contractor bound only to pro- duce, or cause to be produced a certain result." In the case In re Caldwell, 164 Fed., 515, the court held that musicians at regular wages to play in a theater or other place are , "servants" within the meaning of the bankruptcy act. July 1, 1898, c-541, par. 64-b. Lexicographers define these words different- ly but courts have not considered themselves bound by the defini- tions found in dictionaries and have construed these words so as to carry into effect the intention of the law-makers, and with this thought in mind it is my opinion that the members of the orchestra would usually be employes within the meaning of the compensation 20 LEGAL OPINIONS ON VARIOUS PHASES OF THE acts The contract of employment may, however, be such as to change the relationship of the parties so that they would be inde- pendent contractors or perhaps employes of the director of the orchestra. In view of the foregoing it is my opinion that you should care- fully examine the contract under which these orchestra members are employed and ascertain the relationship which exists between them and their employer, and if you find that the relationship of master and servant does in fact exist you should consider them as employes within the definition of Section 2477-ml6-b, referred to above. Yours truly, Heney B. Sampson, Assistant Attorney Oeneral. Employes on Commission Basis. Payment op Employe on Commission Basis Not Controlling . Eelationship op Master and Servant Must Exist. October 15, 1914. , Hon. Warren Garst, Iowa Industrial Commissioner. Dear Sir: Eeplying to your inquiry as to whether or not one working upon a commission basis is an employe within the mean- ing of the Iowa workmen's compensation act will say that the fact that the compensation of such employe is computed on the basis of sales made instead of upon the number of days or weeks spent is unimportant since it is merely a different method of computing the compensation he is to receive fcr his work. The important ele- ment to be considered in cases of this character is the relationship which exists between the parties. One cannot be a workman or employe unless there is a contract of service. There must be the relationship of master and servant which includes the right of the employer to control the way in which the services shall be ren- dered. Payment of an employe on a commission basis, in whole or in part, or wages or salary does not determine the relation of the employer and the employe. This relationship must be de- temuned rather upon whether or not the employer has control of IOWA WORKMEN'S COMPENSATION ACT 21 the time of the employe and in the manner in which his work is to be performed. In all such cases it is necessary to carefully examine the con- tract under which the employe is working. Yours truly, Henry E. Sampson, Assistant Attorney General. Liability to Employes of Contractors. Caepenters Employed By General Contractor Are Not Em- ployes op THE Owner op the Building Being Constructed, Regardless op the Pinanclal Ability op Contractor* February 17, 1915. Walter J. Fluent, Charles City, Iowa. Dear Sir : For answer to your letter of February 16th I am enclosing pamphlet which answers most, if not all, of your ques- tions. The owner of the building being constructed would be liable, under the compensation act, to carpenters employed by him, if the relationship of master and servant existed between them. If the carpenters were working as or for independent contractors, then there would not be the relationship of master arid servant and the owner of the building would not be their employer within the meaning of the act. The owner of the building would not be liable in case of an injury to an employe who was working for a con- tractor even though the contractor might be without insurance and not financially able to pay the compensation provided by law. Yours very truly, Henry E. Sampson, Assistant Attorney General. 22 LEGAL OPINIONS ON VARIOUS PHASES OF THE Employes Under Age. Compensation Must Be Paid Even Though the Injured Em- ploye May Be Under Age And Unlawfully Employed. July 13, 1914. Morrison Eicker Mpg. Co., Grinnell, Iowa. Gentlemen: Replying to your letter of the 10th instant ad- dressed to the attorney general will say that under the laws of Iowa it is unlawful for a boy thirteen years of age to work in your factory even under the conditions mentioned in your letter. However, should he be permitted by you to work in your estab- lishment and while so engaged should sustain a personal injury arising out of and in the course of his employment, it is my Judg- ment that you would still be liable to him for the compensation provided under the Iowa compensation act, unless either one or both of you have elected to reject its provisions. Yours very truly, Henry E. Sampson, Assistant Attorney General. Extra Territorial. Extra Territorial Effects of the Iowa Compensation Act — Authorities Cited. March 2i, 1914. Hon. Wareen Gaest, Industrial Commissioner. Dear Sir: You ask to be advised when, under the provisions of Ch