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of the foreclosure of a subsequent mortgage, delayed bringing an action on his mortgage until after the period of redemption from such foreclosure had expired, could not, as against a purchaser at the foreclosure, set up the absence of the mortgagor from the state since the foreclosure of the second mortgage, in order to avoid the bar of the statute. It was there said: "When the mortgagor has parted with his title to the property, and ceased to have any interest therein, those who have succeeded to his rights stand in the same relation to the mortgagee as if they had originally made the mortgage on their own property to secure the debt of the mortgagor. The mortgagor has no interest in the property, nor are they under obligation to pay his debt. Their property, however, is bound as collateral security for its payment, under the mortgage, which

is a contract in writing, by which the
property is pledged as a security for
the debt. The mortgage, in such a .
case, has the same effect in law as if
it had been originally made, as a sepa-
rate instrument, by the parties suc-
ceeding to the rights of the mortgagor,
to secure his debt. If A make a mort-
gage on his own property to B, to se-
cure a debt owing from C, the action to
foreclose the mortgage must be
brought within four years from the
time when the debt became due. The
time could not be prolonged by any
stipulation between B and C to which
A was not privy. But when the four
years were about to expire, could C,
under our law, indefinitely postpone
the bar of the statute, and render it
nugatory as to A, by absenting him-
self from the state, and never return-
ing?"

M. F. L

GEORGE MCKINSTRY

V.
M. GUY et al., Trading as Guy Coal Company, Appts.

Kansas Supreme Court - May 10, 1924.

(116 Kan. 192, 225 Pac. 743.)

Workmen's compensation, $ 10} – piecework.

1. A workman who is paid wages by the piece or quantity comes within the Workmen's Compensation Act the same as one who is paid by the day.

[See note on this question beginning on page 839.] Workmen's compensation, § 71 plaintiff was entitled to the maximum amount of compensation.

amount of compensation for total 2. There was competent and suf- disability-$15 per week for a period ficient evidence to sustain the con- of eight years. clusion of the court that, under the [See 28 R. C. L. 821; 4 R. C. L. Supp. Workmen's Compensation Act, the 1867.]

APPEAL by defendants from a judgment of the District Court for Cherokee County (Boss, J.) in favor of plaintiff in an action brought under the Workmen's Compensation Act to recover compensation alleged to be due for an injury sustained by him while in the employ of defendants. Affirmed.

The facts are stated in the opinion of the court.

Messrs. A. M. Seddon, A. F. Wil- Plai iff was not an independent liams, and Don H. Elleman for ap- contractor. pellants.

Pottorff v. Fidelity Coal Min. Co. Messrs. Charles Stephens and F. E. 86 Kan. 774, 122 Pac. 120; Messmer Dresia, for appellee:

v. Bell & G. Co. 133 Ky. 19, 117 S. W.

346, 19 Ann. Cas. 1; Nelson v. Ameri

the mine in which the plaintiff was can Cement Plaster Co. 84 Kan. 797, working were paid so much a ton 115 Pac. 578.

for mining coal. Here, the plaintiff There was a sufficient basis for the

was paid so much a car. The plainaward to plaintiff.

tiff did not have a contract to do any Bundy v. Petroleum Products Co.

certain amount of work, to work 103 Kan. 40, 172 Pac. 1020.

any given number of days, to proMarshall, J., delivered the opinion duce any definite number of cars or of the court:

tons of coal, or to mine the coal This action is one to recover un- from any particular place. The deder the Workmen's Compensation fendants could have discharged the Act (Rev. Stat. $$ 44-501 to 44- plaintiff at any time for any reason 547). Judgment was rendered in whatever. For the purpose of this favor of the plaintiff for the maxi- case, “wages” may be appropriately mum amount allowed for total dis- defined as that which one pays to ability, and the defendants appeal. another for labor performed. That

1. The first proposition contend- labor may be by the hour, by the ed for is that the plaintiff was not day, by the week, by the month, or an employee of the defendants with by the piece. 3 Bouvier's Law Dict. in the meaning of the Workmen's 3d Rev. 3417; 8 Words & Phrases, Compensation Act. The defendants 7372; 4 Words & Phrases, 2d series, were operating a coal mine in Cher- 1219: In a note to 40 Cyc. 240, it okee county. The plaintiff with his is said that "wages may be measboy was digging coal for the defend- ured by the time, by the ton, by the ants at 60 cents for each mine car piece, or by any other standard.” A of coal produced. The plaintiff fur- large number of cases are cited in nished his own tools and supplied the note. If the contract had been his own material, such as powder, to mine a certain amount of coal, or fuses, paper, etc., to be used in min- to mine all the coal from a certain ing coal. The defendants argue that place, the contention of the defendthis made the plaintiff an independ- ants might be good;

Workmen's ent contractor and took him out of but that is not compensation the operation of the Workmen's the situation.

The-piecework. Compensation Act. The defendants plaintiff was an employee within the cite Pottorff v. Fidelity Coal Min. meaning of the Workmen's CompenCo. 86 Kan. 774, 122 Pac. 120; sation Act. Maughlelle v. Price, 99 Kan. 412, 2. It is contended that there was 161 Pac. 907; Klapper v. J. R. Bur- neither competent nor sufficient evi. nett Coal & Min. Co. 108 Kan. 61, dence to fix the basis on which to es194 Pac. 315; Farmer v. Purcell, 109 timate the compensation to be paid Kan. 612. 201 Pac. 66. None of the plaintiff. The plaintiff had been those cases support the defendants. working for the defendants two or In the first three of the cases cit- three months only. Part of the ed, an entire coal mine had been time he had worked by the day, for leased, and the lessors were held not which he received $8 a day, and the liable to a workman employed by remainder of the time he had rethe lessee, in the first for negligence, ceived 60 cents a car for the coal and in the last two under the Work- mined by him and his son. The men's Compensation Act. In the plaintiff testified that, after he comlast case cited, the person who menced to mine coal by the car, he claimed compensation had been em- and his son earned on an average of ployed by one who had contracted to $6 a day each, and that sometimes it remove sawdust from a sawmill. ran up as high as $10 a day each.

Employees are often paid by the A witness, who was employed in piece or quantity, generally known mining coal in the vicinity of the as piecework. The evidence shows mine in which the plaintiff was inthat many miners in the vicinity of jured, testified that the usual wage (116 Kan. 19%, 225 Pac. 743.) in that vicinity was $8 a day, and ing the injury, undiminished by loss that he had received in wages for due to absence from work on acthe previous year's work approxi- count of illness or other unavoidable mately $1,700 or $1,800.

cause. (b) Where the workman has There was evidence which tend- been employed less than one year by ed to show that neither this mine the employer in whose employ he re

nor any of the oth- ceived the injury, fifty-two times the amount of compensation.

ers in its vicinity average weekly amount which, dur

operated full time. ing the twelve months immediately When the mine in which the plain- preceding the accident, was being tiff worked was not in operation, he earned by a person in the same did not earn wages, but his compen- grade employed at the same work sation should not be reduced because by the same employer, undiminished the mine did not run full time. His by loss due to absence from work compensation should be calculated on account of illness or other unfor the period fixed by law, at the avoidable cause; and if there is no rate fixed by law, whether the mine person in the same grade employed was operated all the time or only at the same work by the same empart of the time. At $6 a day, he ployer, then fifty-two times the avwould earn $36 in a week of six erage weekly earnings of a person working days, and if the mine ran in the same grade employed by the full time, he would earn $1,872 in a

same or other employer in the same year. Sixty per cent of $36 would

district at the same or similar work be $21.60, or more than the maxi

or employment." mum amount allowed by law.

Closing the mine, so far as the The statute should be examined to

plaintiff was concerned, was an undetermine whether the plaintiff's

avoidable cause preventing him compensation should be reduced for the time that the mine was closed.

from working. Under the statute, Section 44-511 of the Revised Stat

the time during which the mine was

closed should not be considered for utes, in part, reads: "The average annual earnings of a workman shall,

the purpose of reducing the compenfor the purpose of the provisions of

sation of the plaintiff. this act, be computed as follows:

There was sufficient competent (a) Where the workman has been

evidence to fix the basis on which to continuously employed by the same

calculate the compensation that employer for one year or longer, the

should be paid to the plaintiff. That actual amount of money paid by the evidence showed that he was entitled employer to the employee as wages

to the maximum amount_$15 per or remuneration for his services

week for eight years. during the year immediately preced- The judgment is affirmed.

ANNOTATION.

Workmen's compensation: applicability to pieceworkers.

Right to compensation,

It seems to be well settled in the various jurisdictions that a pieceworker is an employee rather than an independent contractor, and so is entitled to the protection of a workmen's compensation act.

Alabama.-Ex parte Smith Lumber Co. (1921) 206 Ala. 485, 90 So. 807.

California, Helmuth v. Industrial Acci. Com. (1922) 59 Cal. App. 160, 210 Pac. 428. See also Donlon Bros.

v. Industrial Acci, Commission (1916) 173 Cal. 250, 159 Pac. 715; Fidelity & D. Co. v. Brush (1917) 176 Cal. 448, 168 Pac. 890.

Illinois. - Cinofsky v. Industrial Commission (1919) 290 Ill. 521, 125 N. E. 286; Franklin Coal & Coke Co. v. Industrial Commission (1921) 296 Ill. 329, 129 N. E. 811.

Indiana.-Indiana Window Glass Co. v. Mauck (1920) 74 Ind. App. 546. 128 N. E. 451; Muncie Foundry & Mach. Co. v. Thompson (1919) 70 Ind. App. 173, 6 D. L. R. 231; Beaulieu v. Picard 157, 123 N. E. 196; Coppes Bros. & (1912) Rap. Jud. Quebec 42 C. S. 455, Zook v. Pontius (1921) 76 Ind. App. 7 D. L. R. 2. 298, 131 N. E. 845.

Thus, in Coppes Bros. & Zook v. Iowa. Root v. Shadbolt (1923) Pontius (Ind.) supra, the court, in 195 Iowa, 1225, 193 N. W. 634.

affirming an award of compensation Kansas.-See the reported case (MC- for injuries received by a log hauler KINSTRY V. GUY, ante, 837).

working on a piece-rate basis, based Louisiana.-Bell v. Hanson Lumber the right thereto on the fact that the Co. (1922) 151 La. 92 So. 350; claimant was an employee and not an Dick v. Gravel Logging Co. (1922) independent contractor, It appeared 152 La. 993, 95 So. 99; Burt v. Davis- that the log hauler furnished his own Wood Lumber Co. (1924) 157 La. team and wagon, was free to do the 102 So. 87.

work in his own way, and was paid Maine.-See Clark's Case (1924) each week at the rate of $7 per thouMe. —, 126 Atl. 18.

sand. But the evidence also showed Michigan.—Tuttle v. Embury-Mar- that the employer had the right to tin Lumber Co. (1916) 192 Mich. 385, unlimited control of the employee's 158 N. W. 875, Ann. Cas. 1918C, 664; work, although the right was not exVan Simaeys v. George R. Cook Co. ercised, and that there was no agree(1918) 201 Mich. 540, 167 N. W. 925; ment as to the amount of work to be Conrad v. Cummer-Diggins Co. (1923) done. The court said: “In the case 224 Mich. 414, 195 N. W. 53. See also at bar the appellee had not contracted Gross v. Michigan Iron & Chemical Co. to do a definite piece of work as an (1922) 219 Mich. 200, 189 N. W. 4. entirety. While the appellant did not

Minnesota.-State ex rel. Virginia & actually exercise any control over the R. Lake Co. v. District Ct. (1914) 128 appellee, the clear inference is that it Minn. 43, 150 N. W. 211, 7 N. C. C. A. had the right to exercise unlimited 1076.

control, had it seen fit so to do. The New Jersey.-Schaeffer v. De Grot- appellant was free to discharge the tola (1914) 85 N. J. L. 444, 89 Atl. appellee at any time, and was free to 921, 4 N. C. C. A. 582.

employ as many other men and teams New York.-Rheinwald v. Builders' to haul logs from the same woods as Brick & Supply Co. (1915) 168 App. it might desire. Without further Div. 425, 153 N. Y. Supp. 598 (but see elaboration, we are of the opinion that Rheinwald v. Builders Brick Co. (1916) the conclusion drawn from the evi174 App. Div. 935, 160 N. Y. Supp. dence by the industrial board is legiti1143, affirmed in (1918) 223 N. Y. 572, mate." 119 N. E. 1074); Fancher v. Boston In Helmuth v. Industrial Acci. ComExcelsior Co. (1923) 235 N. Y. 272, mission (1922) 59 Cal. App. 160, 210 139 N. E. 265. See also Prince v. Pac. 428, the court, in holding that Schwartz (1920) 190 App. Div. 820, the Workmen's Compensation Act ap180 N. Y. Supp. 703.

plied to a farm hand engaged in drillNorth Dakota.-Lilly V. Haynes ing holes and blasting, at a fixed price Co-op. Coal Min. Co. (1923) – N. D. per hole, although not bound to work —, 196 N. W. 556.

any specified hours, said: “It seems Wisconsin. Komula v. General clear from the entire evidence that the Acci. Fire & Life Assur. Corp. (1917) applicant was an employee of peti165 Wis. 520, 162 N. W. 919.

tioner, although he was paid under a England.-Evans v. Penwyllt Dinas system known as 'piecework' rather Silica Brick Co. (1901) 6 B. W. C. C. than a regular daily wage.... If 491.

applicant had been an independent Scotland. — M'Cready v. Dunlop contractor, he would have been legally (1900) 2 Sc. Sess. Cas. 5th series, obligated to complete his contract; 1027; Doharty v. Boyd (1909] S. C. 87; but there is nothing in the record to Taylor v. Burnham (1910] S. C. 705. indicate that applicant was not free

Canada.–Cargeme v. Alberta Coal at all times to discontinue his work & Min. Co. (1912) 5 Alberta L. R. without legal liability. He did not

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contract to drill any certain number ployee within the Workmen's Compen of holes, nor to do any certain amount sation Act, and not an independent of work, but he merely engaged to contractor. Muncie Foundry & Mach. work from day to day upon a wage Co. v. Thompson (1919) 70 Ind. App. to be measured by the actual amount 157, 123 N. E. 196, wherein the court of work done.”

said: "Appellee's pay, instead of It was said in Cinofsky v. Industrial being measured by the hour, day, Commission (1919) 290 Ill. 521, 125 week, or month, was by this contract N. E. 286, that the Compensation Act to be measured by the tons of coke applied to a pieceworker controlled unloaded, but he was none the less a and supervised in his work, even laborer in the employ of the appelthough the employment was for one lant, doing appellant's work, at the job only. In that case it appeared time he received the injury in ques. that a workman was employed by a tion.” junk dealer to strip engines at $4 In Ex parte W. T. Smith Lumber Co. apiece, used the employer's tools, and (1921) 206 Ala. 485, 90 So. 807, it was could have been supervised if the na- held that the Workmen's Compensature of the work had required it. tion Act applied to a workman en

The Compensation Act was held to gaged in cutting timber for a lumber be applicable in Franklin Coal & Coke company at from 10 to 20 cents per Co. v. Industrial Commission (1921) tree, according to its size, working 296 Ill. 329, 129 N. E. 811, wherein it subject to supervision and control by appeared that a workman was engaged the company, and paid off regularly in building mine cars, subject to the on pay days. control of the mine owner, using ma- One who undertakes to unload coal terial and tools furnished by the from railroad cars at a piecework owner, working in a shop on the price per ton, and uses the company's premises, and being paid at the rate tools, is not an independent conof $17.50 a car. The court said: “The tractor, but an employee entitled to fact that payment is to be made by the protection of the act. Indiana the piece or the job, or the day or Window Glass Co. v. Mauck (1920) 74 hour, is not necessarily controlling, Ind. App. 546, 128 N. E. 451. where the workman is subject to the Where a workman employed to haul control of the employer as an em- gravel at a specified piece rate per ployee, and not a contractor. Here yard secured other haulers to work the work was done on the employer's with him under the control of the empremises, in a shop provided for the ployer, it was held that neither that purpose, with materials furnished by employee nor those he hired were inthe employer and with its tools. The dependent contractors, but were emworkmen were regular employees of ployees within the act. Root v. Shadthe defendant in error. They were bolt (1923) 195 Iowa, 1225, 193 N. W. subject to be called from this work, 634. and actually were called from the In Bell v. Albert Hanson Lumber work at various times by the employer Co. (1922) 151 La, 824, 92 So. 350, the to do other work which it desired done. court held that the protection of the The company told them what the sizes Workmen's Compensation Act applied and dimensions of the cars were to to a workman who was killed during be, the height and width, and the the course of employment while enheight of the wheels, and the work- gaged in cutting timber by piece labor men made them accordingly. The --so much per tree. It appeared that work was not of a character requiring the workman furnished his own tools, a great deal of supervision."

was free to work when he pleased so Where workman was injured long as he showed up with the gang while engaged in ur.loading coke from with some degree of regularity, and freight cars at 40 cents per ton, with was paid as a pieceworker. However, no agreement as to the amount to be the employer depended on the workunloaded, he was held to be an em

as its regular logging outfit to

a

men

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