248 N.W. 827 | Minn. | 1933
There is no material conflict in the evidence. Relator is a fraternal organization incorporated under the laws of this state. It carries on no business. It engages in no work for profit. Through a committee relator arranged for a circus to perform for a week beginning February 15, 1932, at the St. Paul auditorium. The same circus, under an arrangement with a circus committee of the Zurah Temple of Minneapolis, thereafter performed for a week in the *240 auditorium of that city. The purpose of relator in arranging for the circus was to raise funds to defray expenses to the Imperial Council. A similar circus had performed for a week in two prior years. The chairman of relator's circus committee was C.P. Bull. It appears that in the prior years, as well as in 1932, Dennie Curtis was engaged to give the circus. Mr. Curtis was in that business, traveling through the country. He planned the acts and selected the performers and hands to handle the property. Curtis was to receive $750 for the week. The relator's committee was to pay all transportation from Chicago and return. A written contract was signed by the committee and Dennie Curtis. Therein Curtis was designated as the performer and the committee as the manager. This contract contains no provision as to how the wages of the performers or property men are to be paid or who is to pay them. It contains this provision:
"It is hereby agreed that in case of accident of any kind or nature to the performer or any of his employes or animals during the life of this contract that he hereby waives claims for damages against Osman Temple or any of its officers."
This recognizes respondent and the others hired by Curtis as Curtis's employes. Respondent was engaged by Curtis at Chicago, and his wages fixed at $40 for the week. Respondent never talked to the committee or its chairman touching his employment or wages. Though nothing is said in Curtis's contract, it is admitted that the committee or Mr. Bull was to pay the expenses connected with giving the circus in addition to the $750 Curtis personally was to receive; that is, the performers' and property men's salaries or wages were to be paid by Mr. Bull at the end of the week. On the 19th of February Mr. Houser, whose duty was to see that the loop-the-loop car used in the circus did not get out of control, fractured his leg in an attempt to stop the car.
Two questions are raised by relator. It denies that respondent was in its employ and contends that even if it be held that such relation exists respondent's employment for a week was casual and *241 not in the usual course of relator's business or occupation and hence not within the compensation act.
The compensation act, 1 Mason Minn. St. 1927, § 4326(d), reads:
"The term 'employer' as used herein, shall mean every person not excluded by section 8, who employs another to perform a service for hire and to whom the 'employer' directly pays wages, and shall include any person or corporation, co-partnership or association or group thereof," etc.
Section 8 of the act (1 Mason Minn. St. 1927, § 4268), as far as here applicable, reads:
"This act shall not be construed or held to apply to any common carrier by steam railroad, domestic servants, farm laborers or persons whose employment at the time of the injury is casual, and not in the usual course of the trade, business, profession or occupation of his employer."
It may be conceded that relator was the employer of respondent at the time he received his accidental injury. Mr. Bull testified that the $750 specified in the contract with Curtis was for his personal services, and that all additional help that was required in putting on this circus at the auditorium "was to be paid separately by Osman Temple Circus," that is, by the circus committee, of which Mr. Bull was the chairman. Although Mr. Bull personally did not hire respondent or any other performer or "prop man," the commission could find under the definition of employer in the quoted part of the compensation act that relator was respondent's employer, for the wages were paid directly by it to respondent. Curtis, as between respondent and relator, may be considered the latter's agent in hiring everyone connected with the circus performance. In that view, as agent, Curtis had control of the men, he engaged them for certain tasks, he placed each where he deemed proper, he could discharge them. Curtis, hired at the wage of $750 for a week to conduct the circus, was no more an independent contractor than the foreman of a construction crew of a corporation erecting a large building or structure, who is paid a large weekly wage and *242 who has full control of his crew, including the authority to hire and discharge, can be considered an independent contractor and the employer of the men in the crew. This is not saying that respondent might not have held Curtis as his employer if ignorant of the agency conferred by relator. But the commission had before it the fact that relator was to pay the wages of the men the same as the wages of Curtis, and the definition in the act of "employer," and we cannot disturb the finding that respondent was in its service when injured. Curtis, in what he did and was to do in putting on the circus, could be found to be relator's agent.
Relator cites Campbell v. Connolly Contracting Co.
Here where under the contract with Curtis for a wage he was to employ all men needed but relator was to pay the wages and all expenses, it cannot be said that the industrial commission is not authorized to find that Curtis was in everything he did in connection with giving the circus in St. Paul the mere agent and employe of relator. It does not appear that the $750 salary paid Curtis was for the use of any of the property or equipment of the circus. Mr. Bull clearly testified that the amount paid Curtis was solely for his personal work. *243
The employment of a person for one week must be considered casual. It was clearly understood when relator authorized Curtis to engage respondent that the employment was for a week only. Billmayer v. Sanford,
The award of the commission is set aside and its decision reversed.
WILSON, Chief Justice, and HILTON, Justice, took no part. *244