Sidebilder
PDF
ePub

C. A.

1905

Jan. 12.

[IN THE COURT OF APPEAL.]

ELLIS v. JOSEPH ELLIS & CO.

(ROBERTS AND TAYLOR SURVIVING PARTNERS).

Employer and Workman-Workmen's Compensation-Partner working at Wages-Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 1, sub-s. 1, and s. 7, sub-s. 2.

A member of a partnership formed for the purpose of working a mine, by arrangement with his co-partners, worked in the mine as a working foreman, and received weekly wages out of the profits of the business. While working in the mine, he met with an accident which caused his death, and his widow thereupon claimed compensation under the Workmen's Compensation Act, 1897, from the surviving partners :

Held, that the case contemplated by the Workmen's Compensation Act, 1897, was that of a workman employed by some other person or persons; that, the deceased having been himself one of the partners in the firm for which he was working, he could not be said to have been employed by them; and therefore that the case was not within the Act, and the applicant was not entitled to compensation.

APPEAL against the award of the judge of the county court of Flintshire upon a claim for compensation under the Workmen's Compensation Act, 1897.

The applicant was the widow and personal representative of one Joseph Ellis, deceased. The respondents were the two surviving partners of a firm called Joseph Ellis & Co. It appeared that by an indenture of agreement dated November 9, 1898, and made between Henry Cross, as agent of the owners, of the one part and Joseph Ellis of the other part, a licence was granted to the latter to work the coal cannel, coal slack, ironstone, surface clay, and fireclay, lying under certain lands, known as the West Buckley Colliery, for the term of twentyone years. On July 17, 1903, a deed was executed between Joseph Ellis of the one part and John Taylor, earthenware manufacturer, and Thomas Roberts, draper, of the other part, whereby the said Joseph Ellis, in consideration of a sum of 3007., assigned to the said John Taylor and Thomas Roberts, respectively, third shares of all his estate and interest under

C. A.

1905

ELLIS

v.

& Co.

the before-mentioned agreement of and in the mines therein described, and the said parties mutually covenanted to become partners under the name of Joseph Ellis & Co. for the purpose of effectually exploring and working the mines and veins com- JOSEPH ELLIS prised in the said agreement, for the washing, smelting, and refining of all ores or minerals which might be produced from such mines or veins, and for the sale of all such produce, either in a natural or manufactured condition. The deed further provided (inter alia) that each of the partners should, upon the execution thereof, pay into the partnership account at a bank the sum of 501.; that the capital of the firm should be 300%., of which the sum of 150l. was the estimated value of certain machinery, plant, and stock-in-trade, described in a schedule to the deed, and then or thereafter to be placed on the premises, and the remaining sum of 150l. was the sum to be paid to the bankers of the firm as thereinbefore provided; and that the profits and losses of the business should be divided between the partners in equal shares. A short time after the formation of the partnership the partners orally agreed among themselves that, if any partner did any work at the colliery, he should be paid like any ordinary workman. The deceased man Ellis, who had practical experience as a working miner and engineer, acted in the capacity of a working foreman at the colliery, working himself, sometimes above ground in charge of the engine and otherwise, and sometimes underground, and directing the operations of the other workmen employed. He had received by way of wages out of the proceeds of the business on the average about 33s. a week. On November 15, 1903, while the deceased was working underground, through the chain by which a tub was being lowered breaking, the tub fell upon the deceased and so injured him that he died. The applicant thereupon claimed compensation under the Workmen's Compensation Act, 1897, for herself and two children of the deceased as having been wholly dependent upon him at the time of the accident, the claim being expressed to be made. against "Joseph Ellis & Co. (Thomas Roberts and John Taylor surviving partners) of West Buckley Colliery."

The county court judge held that the case came within the

VOL. I. 1905.

2 A

2

C. A.

1905

ELLIS

v.

JOSEPH ELLIS

& Co.

Workmen's Compensation Act, 1897, and awarded as compensation the sum of 250l., to be apportioned between the deceased's widow and children as directed by the award.

Powell, K.C., and Ellis Griffith, for the respondents. This case does not come within the provisions of the Workmen's Compensation Act, 1897. That Act contemplates the case of a workman employed by another person or other persons under a contract of employment. The deceased in this case was a partner, and could not be in the employment of the firm of which he was a member. The sums which were paid him by way of remuneration for his work may be called "wages" in one sense, but they were really a share of the profits of the business to which he was by agreement to be entitled before the profits divisible between the partners in equal shares were ascertained. The deceased may have been within the definition of a "workman" contained in the 7th section of the Act in so far as his work was concerned, but he was not in the employment of any employer within the meaning of the Act. The case is in that respect analogous to that of an independent contractor, who, although he does manual labour, has been held not to come within the Act: Vamplew v. Parkstone Iron and Steel Co. (1)

Secondly, assuming that the case falls within the Act, only two-thirds of the amount of compensation assessable under the Act ought to be borne by the surviving partners. The accident happened when all three partners constituted the firm, but by the award the liability is treated as falling on two only.

C. A. Russell, K.C., and H. C. Davenport, for the applicant. The work which the deceased man did formed no part of his duty as a partner under the partnership agreement. It was work done in a capacity totally independent of that of a partner, for which, by agreement with the other partners, he was to receive wages like any other workman. It is submitted that there is nothing in the Act to prevent a person from being a partner in a business and at the same time an employee of (1) [1903] 1 K. B. 851.

C. A.

1905

ELLIS

v.

& Co.

the partnership for the purposes of the Act as a workman. If it be held that in a case like this the Workmen's Compensation Act, 1897, has no application, the effect of such a decision may be very sweeping, for it is becoming not uncommon in trading JOSEPH ELLIS and manufacturing businesses to give the employees a share of profits. It may be that it would not be possible for a person in the position of the deceased to sue for wages, because technically a person cannot be both plaintiff and defendant, but it is submitted that no such difficulty really arises under the Workmen's Compensation Act, 1897. The deceased man came within the definition of a workman given by s. 7, sub-s. 2, which is, “Every person who is engaged in an employment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship, or otherwise, and is expressed or implied, is oral or in writing." That definition clearly contemplates that the agreement need not be one of service strictly so called. In this case there was an agreement analogous to one of service, which imposed duties and conferred rights on the deceased other than those of a partner. The other two partners may, for the purposes of the Act, be regarded as the employers of the deceased.

With regard to the second point, assuming the liability under the Act to have been that of the firm, it survives on the death of one partner as against the surviving partners. No question of the right to contribution (if any) from the estate of the deceased can arise in the present proceeding. Such a question would only arise on a winding-up of the partnership accounts. Powell, K.C., for the respondents, was not called on to reply.

COLLINS M.R. The question is whether, under the circumstances of this case, the widow and personal representative of the deceased man can claim the benefit of the Workmen's Compensation Act, 1897. The deceased was a man belonging to the working class, but he had obtained a licence to work the coal cannel, coal slack, ironstone, surface clay, and fireclay, lying under certain lands, for a term of twenty-one years. Having obtained that licence, he entered into a partnership

[blocks in formation]

C. A.

1905

ELLIS

V.

& Co.

agreement with two other persons, one of whom was an earthenware manufacturer and the other a draper, by which the three agreed to become partners for the purpose of exploring JOSEPH ELLIS and working the mines and veins comprised in the licence, for the washing, smelting, and refining of all ores or minerals Collins M.R. which might be produced from such mines or veins, and for the sale of all such produce either in a natural or a manufactured condition. The deceased appears to have been a skilled workman, and, by agreement with his partners, he worked at the mine, sometimes on the surface and sometimes underground, for wages; and, while working underground, he met with an accident which occasioned his death. His representative thereupon claimed compensation under the Workmen's Compensation Act, 1897, on behalf of herself and his children. The question is whether, having regard to his position as one of the partners, he can be regarded as a workman in the employ of the partnership, and the partners as his employers, within the meaning of the Act. When one looks at the provisions of the Act, they do not appear to be applicable to a case like the present. The supposition that the deceased man was "employed," within the meaning of that term as used in the Act, would appear to involve that he, as one of the partners, must be looked upon as occupying the position of being one of his own employers. It seems to me that, when one comes to analyze an arrangement of this kind, namely, one by which a partner himself works, and receives sums which are called wages, it really does not create the relation of employers and employed, but is, in truth, a mode of adjusting the amount that must be taken to have been contributed to the partnership assets by a partner who has made what is really a contribution in kind, and does not affect his relation to the other partners, which is that of co-adventurer and not employee. Such a partner cannot put himself in the position of not being a partner when he is one, or of being a workman employed, when that position would involve that he would be both employer and employee. The definition of a "workman" given in the Act might cover a person in such a position, apart from the difficulty that arises from the consideration that

« ForrigeFortsett »