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any interest therein, those who have succeeded to his rights stand in the same relation to the mortgagee as if they had originally made the mortgage on their own property to secure the debt of the mortgagor.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 The mortgage, in such a case, has the same effect in law as if it had been originally made, as a separate instrument, by the parties succeeding to the rights of the mortgagor, to secure his debt. If A make a mortgage on his own property to B, to secure 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 himself from the state, and never returning?" M. F. L.

Workmen's compensation, § 101

2. There was competent and sufficient evidence to sustain the conclusion of the court that, under the Workmen's Compensation Act, the

plaintiff was entitled to the maximum amount of compensation for total disability-$15 per week for a period of eight years.

[See 28 R. C. L. 821; 4 R. C. L. Supp. 1867.]

Plaintiff was not an independent contractor.

Pottorff v. Fidelity Coal Min. Co. 86 Kan. 774, 122 Pac. 120; Messmer v. Bell & G. Co. 133 Ky. 19, 117 S. W.

346, 19 Ann. Cas. 1; Nelson v. American Cement Plaster Co. 84 Kan. 797, 115 Pac. 578.

There was a sufficient basis for the award to plaintiff.

Bundy v. Petroleum Products Co. 103 Kan. 40, 172 Pac. 1020.

Marshall, J., delivered the opinion of the court:

This action is one to recover under the Workmen's Compensation Act (Rev. Stat. §§ 44-501 to 44547). Judgment was rendered in favor of the plaintiff for the maximum amount allowed for total disability, and the defendants appeal.

1. The first proposition contended for is that the plaintiff was not an employee of the defendants within the meaning of the Workmen's Compensation Act. The defendants were operating a coal mine in Cherokee county. The plaintiff with his boy was digging coal for the defendants at 60 cents for each mine car of coal produced. The plaintiff furnished his own tools and supplied his own material, such as powder, fuses, paper, etc., to be used in mining coal. The defendants argue that this made the plaintiff an independent contractor and took him out of the operation of the Workmen's Compensation Act. The defendants The defendants cite Pottorff v. Fidelity Coal Min. Co. 86 Kan. 774, 122 Pac. 120; Maughlelle v. Price, 99 Kan. 412, 161 Pac. 907; Klapper v. J. R. Burnett Coal & Min. Co. 108 Kan. 61, 194 Pac. 315; Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66. None of those cases support the defendants. In the first three of the cases cited, an entire coal mine had been leased, and the lessors were held not liable to a workman employed by the lessee, in the first for negligence, and in the last two under the Workmen's Compensation Act. In the last case cited, the person who claimed compensation had been employed by one who had contracted to remove sawdust from a sawmill,

Employees are often paid by the piece or quantity, generally known as piecework. The evidence shows that many miners in the vicinity of

the mine in which the plaintiff was working were paid so much a ton for mining coal. Here, the plaintiff was paid so much a car. The plaintiff did not have a contract to do any certain amount of work, to work any given number of days, to produce any definite number of cars or tons of coal, or to mine the coal from any particular place. The defendants could have discharged the plaintiff at any time for any reason whatever. For the purpose of this case, "wages" may be appropriately defined as that which one pays to another for labor performed. That labor may be by the hour, by the day, by the week, by the month, or by the piece. 3 Bouvier's Law Dict. 3d Rev. 3417; 8 Words & Phrases, 7372; 4 Words & Phrases, 2d series, 1219: In a note to 40 Cyc. 240, it is said that "wages may be measured by the time, by the ton, by the piece, or by any other standard." A large number of cases are cited in the note. If the contract had been to mine a certain amount of coal, or to mine all the coal from a certain place, the contention of the defendants might be good; Workmen's but that is not compensation the situation. The piecework. plaintiff was an employee within the meaning of the Workmen's Compensation Act.

2. It is contended that there was neither competent nor sufficient evidence to fix the basis on which to estimate the compensation to be paid the plaintiff. The plaintiff had been working for the defendants two or three months only. Part of the time he had worked by the day, for which he received $8 a day, and the remainder of the time he had received 60 cents a car for the coal mined by him and his son. The plaintiff testified that, after he commenced to mine coal by the car, he and his son earned on an average of $6 a day each, and that sometimes it ran up as high as $10 a day each. A witness, who was employed in mining coal in the vicinity of the mine in which the plaintiff was injured, testified that the usual wage

in that vicinity was $8 a day, and that he had received in wages for the previous year's work approximately $1,700 or $1,800.

compensation.

There was evidence which tended to show that neither this mine nor any of the oth-amount of ers in its vicinity operated full time. When the mine in which the plaintiff worked was not in operation, he did not earn wages, but his compensation should not be reduced because the mine did not run full time. His compensation should be calculated for the period fixed by law, at the rate fixed by law, whether the mine was operated all the time or only part of the time. At $6 a day, he would earn $36 in a week of six working days, and if the mine ran full time, he would earn $1,872 in a year. Sixty per cent of $36 would be $21.60, or more than the maximum amount allowed by law.

The statute should be examined to determine whether the plaintiff's compensation should be reduced for the time that the mine was closed. Section 44-511 of the Revised Statutes, in part, reads: "The average annual earnings of a workman shall, for the purpose of the provisions of this act, be computed as follows: (a) Where the workman has been continuously employed by the same employer for one year or longer, the actual amount of money paid by the employer to the employee as wages or remuneration for his services during the year immediately preced

ing the injury, undiminished by loss due to absence from work on account of illness or other unavoidable cause. (b) Where the workman has been employed less than one year by the employer in whose employ he received the injury, fifty-two times the average weekly amount which, during the twelve months immediately preceding the accident, was being earned by a person in the same grade employed at the same work by the same employer, undiminished by loss due to absence from work on account of illness or other unavoidable cause; and if there is no person in the same grade employed at the same work by the same employer, then fifty-two times the average weekly earnings of a person in the same grade employed by the same or other employer in the same district at the same or similar work or employment."

Closing the mine, so far as the plaintiff was concerned, was an unavoidable cause preventing him from working. Under the statute, the time during which the mine was closed should not be considered for the purpose of reducing the compensation of the plaintiff.

There was sufficient competent evidence to fix the basis on which to calculate the compensation that should be paid to the plaintiff. That evidence showed that he was entitled to the maximum amount-$15 per week for eight years.

The judgment is affirmed.

Louisiana.-Bell v. Hanson Lumber Co. (1922) 151 La., 92 So. 350; Dick v. Gravel Logging Co. (1922) 152 La. 993, 95 So. 99; Burt v. DavisWood Lumber Co. (1924) 157 La. 102 So. 87.

Maine. See Clark's Case (1924) Me. 126 Atl. 18.

Michigan. Tuttle v. Embury-Martin Lumber Co. (1916) 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C, 664; Van Simaeys v. George R. Cook Co. (1918) 201 Mich. 540, 167 N. W. 925; Conrad v. Cummer-Diggins Co. (1923) 224 Mich. 414, 195 N. W. 53. See also Gross v. Michigan Iron & Chemical Co. (1922) 219 Mich. 200, 189 N. W. 4.

Minnesota.-State ex rel. Virginia & R. Lake Co. v. District Ct. (1914) 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076.

New Jersey.-Schaeffer v. De Grottola (1914) 85 N. J. L. 444, 89 Atl. 921, 4 N. C. C. A. 582.

New York.-Rheinwald v. Builders' Brick & Supply Co. (1915) 168 App. Div. 425, 153 N. Y. Supp. 598 (but see Rheinwald v. Builders Brick Co. (1916) 174 App. Div. 935, 160 N. Y. Supp. 1143, affirmed in (1918) 223 N. Y. 572, 119 N. E. 1074); Fancher v. Boston Excelsior Co. (1923) 235 N. Y. 272, 139 N. E. 265. See also Prince v. Schwartz (1920) 190 App. Div. 820, 180 N. Y. Supp. 703.

North Dakota.-Lilly v. v. Haynes Co-op. Coal Min. Co. (1923) — N. D. 196 N. W. 556. Wisconsin. Komula V. General Acci. Fire & Life Assur. Corp. (1917) 165 Wis. 520, 162 N. W. 919.

working on a piece-rate basis, based the right thereto on the fact that the claimant was an employee and not an independent contractor. It appeared that the log hauler furnished his own team and wagon, was free to do the work in his own way, and was paid each week at the rate of $7 per thousand. But the evidence also showed that the employer had the right to unlimited control of the employee's work, although the right was not exercised, and that there was no agreement as to the amount of work to be done. The court said: "In the case at bar the appellee had not contracted to do a definite piece of work as an entirety. While the appellant did not actually exercise any control over the appellee, the clear inference is that it had the right to exercise unlimited control, had it seen fit so to do. The appellant was free to discharge the appellee at any time, and was free to employ as many other men and teams to haul logs from the same woods as it might desire. Without further elaboration, we are of the opinion that the conclusion drawn from the evidence by the industrial board is legitimate."

In Helmuth v. Industrial Acci. Commission (1922) 59 Cal. App. 160, 210 Pac. 428, the court, in holding that the Workmen's Compensation Act applied to a farm hand engaged in drilling holes and blasting, at a fixed price per hole, although not bound to work any specified hours, said: "It seems clear from the entire evidence that the applicant was an employee of petitioner, although he was paid under a system known as 'piecework' rather than a regular daily wage. . . . If applicant had been an independent contractor, he would have been legally obligated to complete his contract; but there is nothing in the record to indicate that applicant was not free at all times to discontinue his work without legal liability. He did not

contract to drill any certain number of holes, nor to do any certain amount of work, but he merely engaged to work from day to day upon a wage to be measured by the actual amount of work done."

It was said in Cinofsky v. Industrial Commission (1919) 290 Ill. 521, 125 N. E. 286, that the Compensation Act applied to a pieceworker controlled and supervised in his work, even though the employment was for one job only. In that case it appeared that a workman was employed by a junk dealer to strip engines at $4 apiece, used the employer's tools, and could have been supervised if the nature of the work had required it.

The Compensation Act was held to be applicable in Franklin Coal & Coke Co. v. Industrial Commission (1921) 296 III. 329, 129 N. E. 811, wherein it appeared that a workman was engaged in building mine cars, subject to the control of the mine owner, using material and tools furnished by the owner, working in a shop on the premises, and being paid at the rate of $17.50 a car. The court said: "The fact that payment is to be made by the piece or the job, or the day or hour, is not necessarily controlling, where the workman is subject to the control of the employer as an employee, and not a contractor. Here the work was done on the employer's premises, in a shop provided for the purpose, with materials furnished by the employer and with its tools. The workmen were regular employees of the defendant in error. They were subject to be called from this work, and actually were called from the work at various times by the employer to do other work which it desired done. The company told them what the sizes and dimensions of the cars were to be, the height and width, and the height of the wheels, and the workmen made them accordingly. The work was not of a character requiring a great deal of supervision."

Where a workman was injured while engaged in unloading coke from freight cars at 40 cents per ton, with no agreement as to the amount to be unloaded, he was held to be an em

ployee within the Workmen's Compen sation Act, and not an independent contractor. Muncie Foundry & Mach. Co. v. Thompson (1919) 70 Ind. App. 157, 123 N. E. 196, wherein the court said: "Appellee's pay, instead of being measured by the hour, day, week, or month, was by this contract to be measured by the tons of coke unloaded, but he was none the less a laborer in the employ of the appellant, doing appellant's work, at the time he received the injury in question."

In Ex parte W. T. Smith Lumber Co. (1921) 206 Ala. 485, 90 So. 807, it was held that the Workmen's Compensation Act applied to a workman engaged in cutting timber for a lumber company at from 10 to 20 cents per tree, according to its size, working subject to supervision and control by the company, and paid off regularly on pay days.

One who undertakes to unload coal from railroad cars at a piecework price per ton, and uses the company's tools, is not an independent contractor, but an employee entitled to the protection of the act. Indiana Window Glass Co. v. Mauck (1920) 74 Ind. App. 546, 128 N. E. 451.

Where a workman employed to haul gravel at a specified piece rate per yard secured other haulers to work with him under the control of the employer, it was held that neither that employee nor those he hired were independent contractors, but were employees within the act. Root v. Shadbolt (1923) 195 Iowa, 1225, 193 N. W. 634.

In Bell v. Albert Hanson Lumber Co. (1922) 151 La. 824, 92 So. 350, the court held that the protection of the Workmen's Compensation Act applied to a workman who was killed during the course of employment while engaged in cutting timber by piece labor -so much per tree. It appeared that the workman furnished his own tools, was free to work when he pleased so long as he showed up with the gang with some degree of regularity, and was paid as a pieceworker. However, the employer depended on the workmen as its regular logging outfit to