gave him the freight bills and money to pay the freight on goods coming to the warehouse. His quitting time at night varied. Usually he was given a load at the warehouse or directions to pick one up elsewhere, and unless he had time to pick it up that night he did not come back. He made his delivery or got his load the next day if it was too late to finish up that night. He worked until between five and six o'clock each day. During the day the shipping clerk knew where he had gone and when he was expected back. At his home he received directions over the telephone to pick up things on his way down in the morning. If he was not on time at his work the shipping clerk would call up to find out what delayed him. He worked every day in the year, except when ill or away on a vacation. He did no other work than that which he did for plaintiff in error and drove no wagon but the one lettered with plaintiff in. error's name and business. He had a regular vacation and received gifts at Thanksgiving and Christmas as did the other employees of plaintiff in error. All the evidence as to the hiring of the horses and wagons from Mrs. Johnson and the way she was paid was admitted over the objection of counsel for defendant in error.

On the morning of the accident which caused Johnson's death he arrived at plaintiff in error's place of business about the usual time. A shipment of farm implements was loaded on his wagon for delivery to the Wabash railroad on its team track near Fourteenth street, on Plymouth court, and south of the Polk street station. A bill of lading in triplicate and a shipping order were delivered to him when he started away. Plaintiff in error's place of business is about a mile and a half from the Wabash team track. Johnson's ordinary route, as we understand the record, would be to drive to the Polk street depot, then south as far as Taylor street, then east on Taylor street across the railroad tracks leading into the Polk street station to either Dearborn street or Plymouth court, then south to Twelfth street,

then a little west under the Twelfth street viaduct to the Wabash scale shanty to be weighed, then south along the Wabash team track to the Wabash car in which he wanted his load placed. After driving part of this way he left his wagon and went to the Wabash scale house for information as to the location of the freight car and then started back on foot west across the Western Indiana tracks towards his horse and wagon and was struck by a Wabash railroad engine backing south over the Western Indiana railroad tracks and sustained injuries which caused his death almost immediately. The evidence tends to show that the Bristol & Gale Company had neither elected nor rejected the Workmen's Compensation act.

Counsel for plaintiff in error earnestly insist that the deceased was an independent contractor and not an employee of the Bristol & Gale Company within the terms of the Workmen's Compensation act, and that therefore the applicant was not entitled to compensation under the act. Under the proof in this record we think that the evidence as to the teams owned, operated and controlled by Johnson's wife has no real bearing on the question whether Johnson was an independent contractor or an employee of plaintiff in error. The evidence, we think, is clear that the deceased was in no way connected with the ownership of the teams of Mrs. Johnson at the time they were employed by plaintiff in error or at any other time. He had absolutely no control or interest in the earnings of said teams. They were hired from Mrs. Johnson direct and paid for by check to her order. The drivers of those teams were hired by Mrs. Johnson, and her husband in no way controlled their operation.

There is a great amount of discussion in the books as to whether a person is an independent contractor or an employee. In the decisions and lengthy notes in Richmond v. Sitterding, 65 L. R. A. (Va.) 445, Messmer v. Bell & Coggeshall Co. 19 Ann. Cas. (Ky.) 1, and Pace v. Appa

noose County, 17 Neg. & Comp. Cas. Ann. (Iowa,) 682, may be found an abundance of authority on the subject. The numerous definitions of an independent contractor given by the authorities are not essentially different. Among others are the following: "An independent contractor is one who renders service to another in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished." (Messmer case, supra, note on p. 4.) Again: "An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it and may use his own discretion in things not specified." (Gay v. Roanoke Railroad and Lumber Co. 148 N. C. 336.) Also: "One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant." Hale v. Johnson, 80 Ill. 185.

The right to control the work contracted for is an important test in determining whether the employee is an independent contractor or a mere servant, and it may be stated generally that if the employee is under the control of the employer he is a servant, but if in the performance of the work he is not under the control of the employer he is an independent contractor. (Messmer case, supra, note on p. 7.) This, however, is not the only thing that should be taken. into consideration. The fact that an employer reserves the right to control the scope of the work and to make alterations therein does not necessarily make the employee a mere servant. (Messmer case, note on p. 16.) The fact that the employer may at any time terminate the performance of the work by discharging the employee is of considerable weight

as tending to show that the employee is not an independent contractor. (Messmer case, note on p. 18.) The fact that an employee by his contract with his employer is bound to furnish the materials or tools with which the work shall be done affords but little light on the question of his independence, but such fact has in some cases been considered as tending to show independence. (Messmer case, note on p. 19.) The mode of payment for the work to be done is an important element to be considered in determining whether the employee is an independent contractor but is not controlling. (Messmer case, note on p. 19.)

It is impossible to lay down a hard and fast general rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors. "Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative but all must be considered together." (1 Honnold on Workmen's Compensation, sec. 66.) However, in this State it has been held, and in line with the weight of authority, that the right to control the manner of doing the work is the principal consideration which determines whether the worker is an employee or an independent contractor. (Decatur Railway and Light Co. v. Industrial Board, 276 Ill. 472.) The test of relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and a servant or agent. (Tuttle v. Embury-Martin Lumber Co. 192 Mich. 385.) A few cases will illustrate how in different jurisdictions these principles have been applied.

A person engaged in the business of teaming and grading who undertakes to furnish a railroad contractor, for an indefinite period, with teams and drivers for use on a specified work, at a stipulated sum per day for each team, wagon and driver, is not an employee under the Work

men's Compensation act. Western Indemnity Co. v. Pillsbury, 172 Cal. 807.

A man who had contracted with the harbor commissioners to supply a yawl and a crew of four men for pilotage purposes was drowned while putting a pilot on board a vessel. It was held that he was an independent contractor. Walsh v. Waterford Harbor Comrs. 7 B. W. C. C. (Ireland) 960.

A man was engaged by a firm of timber merchants to bring his horse and drag logs of timber from the side of a ship which was being unloaded in the harbor, to a place where the logs were stored. He received a certain sum per day for himself and his horse, and he might have received that sum by sending a servant, if he had one, to lead his horse. He was under no obligation to come on any particular day and he could be told not to come until he was wanted. It was held that he was not a workman but an independent contractor. Chisholm v. Walker & Co. 2 B. W. C. C. 261.

A man was employed by a road overseer of the county council to draw stones from a quarry and used for the purpose a horse and cart belonging to his father. His wages were fixed at a certain sum per day. There was some evidence of control on the part of the overseer of the county council. There was evidence also that he was to get work now and then when there would be work to do, but there was no objection to his working for someone else when he was not wanted badly by the county council. It was held that he was an employee. O'Donnell v. Clare County Council, 6 B. W. C. C. 457.

Where a person was accidentally injured while hauling dirt for another, the injured person using his own team and wagon and being paid by the load, the employer retaining actual supervision and control of the work, the relationship of master and servant was held to exist. VanSimaeys v. Cook County, 201 Mich. 540.