Opinion
File No. 53888
FitzGerald, Foote FitzGerald, Attorneys for the Plaintiff.
Watrous, Hewitt, Gumbart Corbin, Attorneys for the Defendant.
One who swept a stairway and halls and showed rooms to prospective tenants and was granted the use of a portion of the premises on account thereof, was a tenant and not an employee. Hence, the Workmen's Compensation Act does not control with respect to an injury suffered by such person on the premises.
MEMORANDUM FILED FEBRUARY 5, 1938.
The question raised by this plea is whether the plaintiff is an employee or a tenant of the defendant. If, at the time of the accident, he was an employee the compensation act would control and this plea would be good and this action would fail; if he was a tenant at the time, then this action should stand and this plea should be denied.
For a number of years plaintiff has occupied a room in a building owned by the defendant for which he paid a rental of $50. a month. This rental, some years ago, was reduced to $25. a month, and for a period of a year or more, including the time when the accident occurred, the defendant was apparently charging the plaintiff no rent for the room he occupied. Since this action was brought it appeared that the defendant had told the plaintiff that he should begin paying a rental.
For a period of time extending over some years plaintiff has swept a stairway and halls leading to his room and has shown prospective tenants a room or rooms in the building that were for rent.
Under these circumstances plaintiff was a tenant and not an employee.