It appears without dispute that the applicant’s husband resided in Minneapolis and specialized as an artist in painting pictures of landscapes, which he sold, and in doing-interior decorating and painting during several years for patrons in Minneapolis and Eau Claire, including the defendant, Eau Claire Hotel Company, and several other pаrties.
Upon evidence introduced at a hearing before an examiner of the commission, he made findings of fаct upon which he concluded that under the provisions in sec. 102.07 (8), Stats., Conrad was to be considered an emplоyee of the hotel company while at work in its hotel when he sustained an injury on April 18, 1946.
*576 But on a review of the evidence introduced on the .hearing before the examiner, the commission found and concluded: That on or about April 8, 1946, Dan B. Conrad entered into a written contract with the hotel company for the painting of its hotel lobby for the sum оf $475; that at said time he was an independent contractor and maintained a separate business and held himself out to and rendered service to the public ;'and that therefore he was not an employee of the hotel company at the time of his injury and his widow was not entitled to the payments by the hotel company of death benefits under the Workmen’s Compensation Act.
Those findings and conclusions of the commission were warranted by evidencе in the record which, as is stated in the commission’s memorandum attached to its findings and order, is to the following effect:
Cоnrad had been in the interior decorating and painting business in Minneapolis and Eau Claire for many years. He was a skilled artist and specialized in painting pictures of landscapes which he sold to> individuals and also to a commеrcial calendar company. He had complete tools and equipment for interior decorating аnd he worked from his home in Minneapolis and in Eau Claire. Pie occasionally hired a helper to assist him but most of thе time he worked alone. At the time of his injury he was working under a written contract for the painting of the hotel comрany’s lobby for a lump sum of $475. The contract provided that he was to 1 assume responsibility in case of accident. The scaffolding which he was using was owned by the hotel company. It did not control or direct details of Conrad’s work аnd he worked at his own convenience, and at times chosen by himself. While the lobby painting was in the process of dеcoration he did jobs for other persons in their homes and shops. They knew him because of the reputation whiсh he had established in working at the hotel. Most of the jobs done for other persons were, on a lump-sum basis.
Thereupon the commission stated:
“We are satisfied that Conrad was an independent contractor, and that his status, therefore, cannot be that of an *577 employee unless the Workmen’s Compensation Act may define him to be a statutory employee in spite of his status as a contractor.”
And the commission concluded in its memorandum that in order to determine whether Conrad should be considered to be a statutory employee in view of the provisions in sec. 102.07 (8), Stats., 1 there had to be determined whether Conrad, as an independent contractor, did maintain a “separate business” and whether he did “hold himself out to' and render service to the public” within the meaning of the term “employee” as defined under the provisions in sub. (8) оf sec. 102.07, Stats. In determining that issue the commission stated:
“Did Conrad maintain a separate business? We think the testimony is clear that he did. He was in the business of painting and decorating as independent contractor. Did he hold himself out to and rеnder service to the public? The testimony establishes that he did. It is not, of course, required that a contractor -hold 1 himself out to or work for all of the public. The testimony is convincing that Conrad held himself out to such portion of the рublic as he was able to accomniodate, and that he did work for such portion of the public. His income in 1945 was approximately- $3,000, whereas only $637 was paid to him by the hotel. The major portion of his income was earned in working for that portion of the public which desired his services. He held himself out by conducting a business of his own and by working for thоse persons to whom he was recommended and for whom he was able to work. His reputation advertised him as muсh as might have resulted from limited newspaper or other formal advertising.”
The presumption that a person injured whilе performing service for another was an employee rather than an inde
*578
pendent contractor
(Montello Granite Co. v. Industrial Comm.
Consequently, the commission’s findings and determination that Conrad was not an employee of the hotel company must be sustained and therefore it is not liable for the payment of death bеnefits under the Workmen’s Compensation Act.
By the Court. — Judgment affirmed.
Notes
102.07(8) Every independent contractor who does not maintain a sepаrate business and who does not hold himself out to and render service to the public, provided he is not himself an emрloyer subject to this chapter or has not complied with the conditions of subsection (2) of section 102.28, shall for thе purpose of this chapter be an employee of any employer under this chapter for whom he is performing service.in the course of. the trade, business or profession of such employer at the time of the injury.