December 4, 1953 —
December 30, 1953.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by Klaprat, Larson Rogge of Wausau, and oral argument by E. E. Klaprat.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent John Check there was a brief and oral argument by Walter A. Graunke of Wausau.
For the respondents Harold Rebe and Travelers Insurance Company there was a brief by Stroud, Stebbins, Wingert Stroud of Madison, and oral argument by Byron H. Stebbins.
An action was begun by Ulrich Schmidlkofer September 26, 1951, to set aside an order of the Industrial Commission dated September 6, 1951, which dismissed appellant's application for workmen's compensation. The court below entered judgment on April 17, 1953, confirming the order of the commission. This appeal is from that judgment.
The pertinent portions of the findings of fact and order of the Industrial Commission are as follows:
"It is not disputed that applicant was injured on June 18, 1950; that there was prompt notice of injury; that respondent Rebe, d/b/a Polar Country Club Pavilion was subject to the Workmen's Compensation Act with liability insured by the Travelers Insurance Company; that respondent Check at the time of applicant's injury carried no workmen's compensation insurance.
"The primary issue before the commission is whether applicant was an employee of either respondent, Rebe or Check, or whether he was an independent contractor who was not a statutory employee under provision of sub. (8) of sec. 102.07.
"Upon this issue the commission as a body makes the following
"Findings of Fact
"That applicant was a member of a seven-piece orchestra known as `Johnny Check's Orchestra,' under the leadership of respondent Check; that the members and leader, Check, were jointly and severally independent contractors who held themselves out to and rendered service to the public in a separate business maintained by them; that they were, therefore, not employees of either respondent."
The commission, in a memorandum attached to the order of September 6, 1951, said:
"Applicant was a member of a seven-piece orchestra, known as `Johnny Check's Orchestra,' under the leadership of respondent Check. His regular occupation was that of building engineer for an insurance company. Check and members of the orchestra were regularly employed at occupations other than that of musicians. Injury occurred while applicant was being transported to the respondent Rebe's Polar Country Club Pavilion. It is clear that he was in the course of his service when injured, and that injury arose out of such service.
"The primary question is whether applicant was an employee of either respondent or whether he was an independent contractor who was not a statutory employee under provision of sub. (8) of sec. 102.07, i. e., an independent contractor who maintained a separate business and who held himself out to and rendered service to the public.
"On January 20, 1950, respondent Check entered into written contract with respondent Rebe to play a dance engagement at Rebe's dance hall on June 18, 1950, for a stipulated sum of $90. The contract provided among other things:
"`This contract for the personal services of musicians made this 24th day of January, 1950, between the undersigned employer (hereinafter called the employer) and seven musicians (hereinafter called employees) represented by the undersigned representative. Witnesseth that the employer employs the personal services of the employees as musicians severally, and the employees severally, through their representative, agree to render collectively to the employer services as musicians in the orchestra under the leadership of Johnny Check, according to the following terms and conditions: . . . The employer shall at all times have complete control of the services which the employees will render under the specifications of this contract. The amount paid to the leader includes the cost of transportation, which will be reported by the leader to the employer. . . .'
"The form of contract is a standard one known as form `B,' adopted by the American Federation of Musicians, of which Check and members of the orchestra are members."
It may be conceded as fundamental that where only one inference can reasonably be drawn from undisputed facts a question of law arises under the statute. However, it is true that even "if there is no dispute in the testimony a question of fact is presented if different inferences may be drawn, or `if something more than the application of a rule of law is required in order to reach a final conclusion.'" Hipke v. Industrial Comm. 261 Wis. 226, 231, 52 N.W.2d 401; Gant v. Industrial Comm. 263 Wis. 64, 56 N.W.2d 525. The commission found that the appellant, as well as the other members of the seven-piece orchestra known as "Johnny Check's Orchestra" were jointly and severally independent contractors and not employees of either respondent. The question as to whether the appellant was an employee of the respondent Rebe depends upon who had the right to control the details of the work. If there is any evidence that neither the respondent Check, as leader of the orchestra, nor the respondent Rebe, as the dance-hall operator, had the right to control the details of appellant's work, the commission's finding that he was not an employee at the time of his injury was conclusive. In Ebner v. Industrial Comm. 252 Wis. 199, 201, 31 N.W.2d 172, we said:
"When, as here, there is evidence which the commission can consider credible and sufficient to warrant finding that Ebner had the right to control the details of his work while engaged in doing the plastering job in question, the commission's finding that he was not an employee at the time of the injury may not be disturbed on an appeal."
"If there is any evidence that Plencner had the right to control the details of his work while repairing this sewer the commission's finding that he was not an employee at the time of the alleged injury is conclusive."
The evidence discloses that Rebe entered into a contract signed by himself and Check for an evening's performance of "Johnny Check's Orchestra" at a flat rate for the evening. Rebe knew nothing about how the price was arrived at or how the money was to be divided. He had no right to determine the identity of the musicians of the band, nor did he have any control over the pieces that were to be played. Neither could he dismiss anyone from the band or add anyone to it. He had nothing to do with the transportation of the band to his dance hall.
As to the members of the orchestra, the evidence discloses that the performers customarily considered themselves as their own masters. Each furnished his own instrument and uniform. The selection of the type of uniform was by mutual consent, as was the selection of the programs. On the evening of the accident, when another musician was substituted for appellant, all of the members of the orchestra took part in the decision. Check was merely a delegate by consent of the other members to sign contracts and line up engagements. Thus where each member of the band had an equal voice in the conduct of its affairs, the venture was carried on as a copartnership. From the record it is clear that there is ample credible evidence to sustain the commission's finding that appellant was an independent contractor.
Writings attempting to define the status of parties are important as evidence, but they are not controlling. We said, in Nestle's Food Co. v. Industrial Comm. 205 Wis. 467, 470, 237 N.W. 117:
"There are certain characteristics of the relation of an independent contractor and principal that may be found in the relation which exists between employer and employee. In such instances under the Workmen's Compensation Law the writings attempting to define the status of the parties and all the surrounding circumstances must be treated together in order to determine the exact relation which has resulted from the dealings between the parties." See also Kneeland-McLurg Lumber Co. v. Industrial Comm. 196 Wis. 402, 220 N.W. 199; Montello Granite Co. v. Industrial Comm. 227 Wis. 170, 278 N.W. 391.
In the case of Bartels v. Birmingham, 332 U.S. 126, 128, 67 Sup. Ct. 1547, 91 L. Ed. 1947, 172 A.L.R. 317, the court, in considering essentially the same form of contract, held that where dance-hall operators had no actual control over the members of bands, notwithstanding contracts providing that the ballroom operator was the employer and "`shall at all times have complete control of the services which the employees will render under the specifications of this contract,'" the dance-hall operators were not subject to the employment tax imposed by the Social Security Act. On the basis of authorities cited, we are of the opinion that the written contract was not conclusive as to the relationship between appellant and respondent Rebe. And, as has already been shown, the relation between appellant and respondent Check was that of copartners in a joint adventure. It is, therefore, considered that the commission's findings and conclusions are fully supported, and that the appellant must stand as an independent contractor.
By the Court. — Judgment affirmed.