(dissenting). I. While the statute referred to by Mr. Justice Salinger, at the outset of his opinion, is cor*172rectly quoted, so far as it goes, it omits the context, without which its force and application may be misapprehended. The subsection so cited (Code Supplement, 1913, Section 24/77-m16) contains the legislative definition of the words “workman” and “employee” as being synonymous terms, and meaning “any person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship for an employer, except a person whose employment is purely- casual and not for the purpose of the employer’s trade or business * * * provided that one who sustains the relation of contractor with any person, firm, association, corporation or the state, county, school district, municipal corporation, cities under special charter or commission form of government, shall not be considered an employee thereof.”
It will thus be seen that, subject to the express exceptions found in the statute itself, the Compensation Act embraces within its scope all'employers and all employees, without reference to their classification at common law. It addresses its provisions, not to master and servant in the strict technical sense, but to “employer” and “employee,” and prescribes for itself the meaning which shall be given to these terms. Observing this statute, the sole question in cases of this character is whether the claimant of compensation entered the employment of the defendant or worked for him under contract of service, express or implied, and whether the injury of which he complains “arose out of and in the course of his employment.” If this inquiry her answered in the affirmative, it matters not what may be the nature of the service performed, or what the terms of the contract may be: the parties are thus brought within the scope of the act, and to this alone we must look for the measure of their mutual rights and obligations. If there be a contract of service, either express or implied, and the employee does not occupy the relation of a mere contractor, it is wholly immaterial whether he works by the year, month, day, or hour; whether his employment be for a fixed period or is terminable at the will of either party, or whether he receives payment on the basis of the time employed or of the work accomplished. That plaintiff did, in fact, work under contract, and receive injury arising out of and in the course of his employment, is shown without dispute; *173and the sole question for onr consideration is whether he must be denied compensation on the theory that he was an independent contractor, within the meaning of the exception already quoted from the statute. The majority opinion affirms this proposition, —a conclusion which I think is demonstrably wrong.
It is true, as suggested by the opinion, that the commissioner found for the appellant, that plaintiff was a contractor, and therefore not entitled to compensation. It is also true, as further suggested, that, where the facts found by the commissioner have support in the evidence, such finding is not open to review on appeal; but it is equally* well settled that, when the “transcript makes, it appear, as a matter of law, that such finding is not sustained by competent evidence, or is contrary to the evidence,” the court may, on appeal, reverse the erroneous judgment. See Griffith case, 183 Iowa 415; Pierce v. Bekins V. & S. Co., 185 Iowa 1346.
The ease now before us is one calling loudly for an application of such rule.
II. The rule that the act should be liberally construed, and its provisions so applied as to promote the intended relief to injured employees, is quoted by the majority — -though for what purpose is quite undiscoverable; for, in its discussion of the facts and law of the case, the opinion treats the rule of liberal construction less as a standard by which the court is to be guided than as a starting post from which to sail away and never return.
III. 'As illustrating the tendency, I call attention to pertinent facts concerning which the majority goes far astray. It is true, the xolaintiff owned a team of his own, and during the summer season earned his living principally by work for the city. As winter approached, and city work slackened, he gave his time and attention to hauling coal; and for several winters he had found employment in that line with the defendant coal dealer. At the opening of the winter in question, he went to the defendant’s office, and sought again to take up the work of hauling coal in their service, and was told to be on hand the next morning for that purpose. It was arranged that he should use his own team and wagon, the defendant furnishing a wagon box, on which its name was painted. For the work of hauling and *174delivering coal to defendant’s customers, plaintiff was to receive' from 75 cents to $1.25 per ton, according to tlie distance over which the deliveries were made. In each instance, the load was made up at defendant’s place of business or at the railway track. When weighed, duplicate tickets were given the plaintiff, with directions as to the place of delivery. It was'his business then to haul the coal to' the customer, unload, obtain the purchaser’s receipt on one of the tickets, and'return it to the defendant's office. This process was repeated as often as the-business of the day required. He had been engaged in this work steadily for about five weeks. He did no- hauling for any other employer. At times, the work would be completed before nightfall ; and in such case, he went to his home, where he remained until the following morning. He says that, on quitting for the day, he was told by defendant to be on'hand-in the morning, and that he made the practice of reporting to his employer each morning about 7 o’clock.
In all this there is nothing whatever inconsistent with the plaintiff’s relation as the employee of the defendant, and nothing Avhatevef to characterize him as an independent contractor. In face of this showing, it seems strange that the opinion should say that the “claimant could go or come when he pleased, and work or not work, as he pleased. He had the right to say what time he would devote to coal hauling. He could decline, from time to time, to haul at all, ’ ’ etc. If this be literally true (though it is not true in the apparent sense intended), what of it? It is equally true of every person engaged in the service of another. The hired workman or servant is not a slave, nor is his employer clothed with absolute authority to control his servant’s movements. The one may drop the service at any moment, and the other may sever the relation and peremptorily discharge the employee; and the possession, or exercise of such power does not prove that the relation between them is that of contractor and eontractee. The plaintiff was. both employed and engaged in the business of hauling coal for defendant. He had been steadily so employed and engaged for at least five weeks, and, but for his injury, would doubtless have continued in that relation for the remainder of the winter, as'he had on previous occasions.
There is still another proposition, -which seems to have *175evaded the attention of courts and law writers, until brought forth to complete the wall of defense which the opinion laboriously erects around the employer in this case. It is repeatedly pointed out and insisted that plaintiff used his own team in defendant’s service, and that this, if nothing else, emphasizes the conclusion that plaintiff was a contractor. By insistent repetition of this point, the writer of the opinion so far convinces himself as to declare that, even if the owner of a team is engag’ed with it in the service of another, “he does not become a servant, if he does not yield to that other the control or management of the team. To make that relationship, the master must be in control of both man and team.” In support of this dictum, we are cited to the case of Ash v. Century Lbr. Co., 153 Iowa 523,—an authority not involving in any manner the Workmen’s Compensation Act, and having only a remote bearing on any issue in this case. That the proposition of the opinion is incorrect has been settled in many cases, as I shall soon show.
A person who provides his own horse, and undertakes with the proprietor of a dairy to cart mills to and from a creamery during a certain period, on such dates as the proprietor should fix, and to receive pay at a rate per gallon of the milk hauled, is a servant, and not a contractor. Clark v. Co-operative Society, Law Reports Curr. Dig. 1913, Vol. 772.
A workman employed to cart stone, using his own cart and horse, and paid by the day, and working for other people when not needed by such employer, is a workman, under the Compensation Act. McNally v. Fitzgerald, 7 B. W. C. C. 966.
The precedents to this general effect are numerous, but I will extend this dissent no further than to cite two comparatively recent cases, which are entirely parallel, in fact and principle, with the case at bar. In Tuttle v. Embury-Martin Lbr. Co., 192 Mich. 385 (158 N. W. 879), the defendants were the owners of saw logs which they desired hauled from the skidway to a distant sawmill. For this purpose it employed, not only its own teams and drivers, but others as well. The plaintiff, owning & team of his own, applied for work, and he was engaged to do hauling. He was to use his own team and outfit, except for a sleigh furnished by defendant. He lived and boarded at home, kept, cared for, and drove his own team, and was to receive $2.00 *176per thousand feet for log's hauled by him. Ordinarily, he made one trip a day, but no requirement to this effect was placed upon him. He controlled his own working hours, and was under no compulsion to work every day. He was assisted in loading, and sometimes in unloading, by defendant’s employees, but drove his own team, chose his own route, and eoriti’olled the size of the loads which he hauled. The logs were measured at the mill, and the driver given a slip or ticket, upon return of which to the office he was credited with the amount, and paid accordingly. Plaintiff, being injured in this work, claimed compensation under the statute of that state, which is quite like our own in its provision that it shall apply to every person, firm, and corporation “who has any person in service under any contract of hire, express or implied, oral or written.” The defendant resisted the claim, as is done in this case, on the theory that plaintiff was not an employee or servant, but a contractor, and supported its defense by the same arguments relied upon by the majority in this case.
The court, basing its conclusion upon the statute and upon the admitted facts, and referring to authorities upon the distinction between employee and contractor, says:
“In some cases., much stress is laid upon the fact that the work to be performed is of an indefinite amount, subject to discharge and control in that regard. Others, whether the employment is of a general, independent character, like that of draymen and common carriers, becomes the controlling question. We are of the opinion that the test of the 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. 26 Cyc. 1547. In our opinion, there was such control over the work of Tuttle, by the company, as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to terminate it at any time, and it was for no definite period or amount. The loading and unloading were under control of the compány, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, but that was true .of all the drivers, whether working by the month or the thousand.”
*177Still more strikingly identical with the present case is Waters v. Pioneer Fuel Co., 52 Minn. 474. There, the plaintiff, as in this case, was hauling coal for the defendant. He owned and used his own team and the running gear of a wagon, for which the defendant furnished a wagon box. He was not sure of business every day, and could quit when he wanted to. He was paid every Saturday, — a fact which, the court says, tends to show that the employment was continuous until suspended. He was paid by the ton for the coal hauled by him. The manner of doing the business was precisely like that pursued in the instant case. When the dealer received a customer’s "order for coal, it was delivered to the hauler to execute. He loaded the coal, took it to the specified place, got the money for it, or took a receipt acknowledging its delivery, and returned it to his employer. Upon these facts, the court, being called upon to determine whether the workman’s relation to the defendant was that of employee or contractor, said:
“We think this evidence shows that the person who delivered the coal was in the service of the defendant, though the term of service was precarious; and we do not see that it is material that he was paid by the load, by the hour, or by the day for his work. He represented the master in all the details of the work enumerated, and, while he remained in defendant’s employment, he was subject to its control. If he had been at work by the day or by the month, and had been furnished with a team and wagon by the, defendant, would the circumstances of the delivery have been any different ? Or would the control of the defendant over the acts of the employee have been otherwise or greater than it was ? His orders were to collect the pay for the coal in advance. If it had not been so paid for, he would have been obliged to have brought the coal back to the yard. The testimony shows that he had worked for the company about three months, hauling coal daily. He had, in the meantime, rendered service for no one else, and appeared to be subject to its orders, and was treated as one of its teamsters or drivers. It is not easy to frame a definition of the terms ‘independent contractor’ that will satisfactorily meet the conditions of different cases as they arise, as each case must depend so largely upon its own facts. One text-writer declares such contractor to be one who undertakes to do *178specific pieces of work for other persons without submitting himself to their control in the details of the work, or one who renders the service in the course of an independent employment, 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. 1 Shear. & R. Neg., Secs. 164, 165. So it is said that an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work. Powell v. Virginia Const. Co., 88 Tenn. 692 (13 S. W. 691). The plaintiff is not concluded by these definitions. But, without attempting to discuss abstract definitions, we feel satisfied that, upon the undisputed facts in the case, the court was right in holding that the relation existing between the defendant and the carrier of the coal was that of master and servant.”
The distinction between employee, or servant, and independent contractor has often been considered by the courts, but no statement of the rule has yet been accomplished which perfectly fits every case. The rule quoted above by the Minnesota court from Shearman & Redfield’s Negligence is perhaps the one most generally approved. But while the reserved right of the employer to control the details- of the work is the most obvious test of the relations of employer and employee, it is to be kept in mind that it is the power or authority to control, and not the control actually exercised, to which we must look in reaching our conclusion. As having bearing on the point here discussed, see, also, Madisonville H. & E. R. Co. v. Owen, 147 Ky. 1; Hamilton v. Oklahoma Trad. Co., 33 Okla. 81 (124 Pac. 38); Cockran v. Rice, 26 S. D. 393 (128 N. W. 583); Macdonald v. O’Reilly, 45 Ore. 589; State Acc. Fund v. Jacobs, 134 Md. 133 (106 Atl. 255); State v. District Court, 128 Minn. 43 (150 N. W. 211); City of Tiffin v. McCormack, 34 Ohio St. 638; Mullich v. Brocker, 119 Mo. App. 332; O’Donnell v. Clare County, 6 B. W. C. C. 457; Thompson v. Twiss, 90 Conn. 444 (97 Atl. 328); Baldwin v. Abraham, 67 N. Y. Supp. 1079; Komula v. General A. F. & L. Assur. Co., 165 Wis. 520 (162 N. W. 919); Madix v. Hochgreve Brew. Co., 154 Wis. 448 (143 N. W. 189). The plaintiff in this case did not undertake to haul or deliver any specific *179amount of coal. He did not undertake the performance of an entire contract for a gross price, and either party was free to terminate the relation at any time, without any liability to the other for damages.
The defendant was a dealer, receiving orders and calls for coal from individual consumers scattered over the city, necessitating the employment of haulers, by whom such orders could be filled. The plaintiff was employed for that purpose. Such service implied authority on the part of the defendant to direct when, where, and to whom deliveries were to be made, and duty on plaintiff’s part to observe all reasonable and proper directions with reference to the work he undertook to perform. He was at all times at the beck and call of his employer, in a manner and to an extent inherently inconsistent with the independence of a contractor.
It is wholly immaterial whether he engaged in other work in the summer season, or served different employers on other occasions, or that this employment was for no definite period, and might be terminated at any time. Subject to the statutory exceptions, and no other, the law imposes on the employer the obligation to make compensation to his employees for injuries arising out of- and in the course of their employment, without regard to the nature or terms or tenure of the service performed by them. It also imposes upon the arbitrators, the commissioner, and the courts the duty of liberal construction of its terms; and if, in any given case, the proved facts leave the question in doubt whether the relation between the parties is that of employer and employee, or contractor and contraetee, an observance of'the rule last mentioned requires the doubt to be resolved in favor of the claimant. So far as this case is concerned, we need not go to this extent; for there is no room for reasonable doubt of the plaintiff’s right to the compensation adjudged to him by the trial court.
Such award is not the imposition of a penalty. The statute provides no penalty nor punishment. It simply recognizes the essential justice of making an industry, or business bear, in some reasonable degree, the burden of the human wreckage which its prosecution brings about. In this manner, and by providing for insurance against such liability, the ultimate loss falls upon so*180ciety at large, for the benefit of which all work is done and all business is transacted.
The opinion prepared for the majority is destructive of the statute, both in letter and in spirit. It ought not to have our approval. The judgment appealed from should be affirmed.