The relation of employer and employee is here indispensable to an award. The basis of the relation is a contract of hire, express or implied. The existence of a contract was challenged by the employer on the ground of fraud. There is no issue of fact on the question. All the evidence is to the effect that the employer was taking back former employees at a different wage and for different duty from that paid and assigned to new men. Plaintiff William Ganga, a large boy, represented that he was Carman Ganga, a brother 24 years old, a former employee. He was hired as Carman and paid and assigned duty as a former employee. While at work he suffered the injury.
There is more here than a mere harmless misrepresentation of age, which counsel contend would not avoid the contract. Nor is it a case where the man himself was hired, but under a fictitious name. Plaintiff was an impostor. By the deception he obtained better compensation and rating from what he would have had had he been accepted for what he was, a new hand. The case is ruled by Minneapolis, etc., R. Co. v. Rock, 279 U.S. 410 (49 Sup. Ct. 363), where, on somewhat similar facts, in an action under the Federal employers' liability act (45 USCA §§ 51-59), the relation of employer and employee was held, on the ground of fraud, not to exist.
The award should be vacated.
WIEST, C.J., and POTTER and SHARPE, JJ., concurred with CLARK, J. *Page 252