231 F. 251 | S.D.N.Y. | 1916
It is a good deal easier to see that the petitioner is not entitled to a priority than to state any general rule which will be applicable in all cases. To succeed she must bring herself within the words “workman” or “servant.” Everyone who understands words knows that it is absurd to call an actress who can command $5,000 for a four weeks engagement a workman or a servant. The words are used in their colloquial sense. Re Gurewitz, 121 Fed. 982, 58 C. C. A. 320; Re Grubbs Wiley Grocery Co. (D. C.) 96 Fed. 183. And the word “servant” does not include all cases where the formal relation of master and servant exists. Re A. O. Brown (D. C.) 171 Fed. 254. Of the two terms the case fits more nearly “servant” than “workman,” yet, since “servant” does not include all cases where one must follow the directions of another, the distinction must be found in the kind of duties done. This lady was not engaged to perform any personal services, whether menial or not; she was engaged in a form of dramatic art, and if she was a servant, so would have been Rachel or Duse, whenever they were under contract to play a part for a manager. Just what kinds of services constitute a servant I do not need to¡ consider, so long as hers are clearly not such, nor need I say whether the petitioner is an independent contractor. This is one of those classes of cases where it is safer to prick out the contour of the rule empirically, by .successive instances, than to attempt definitive generalizations. Noble State Bank v. Haskell, 219 U. S. 104, 112, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487. Re Caldwell (D. C.) 164 Fed. 515, is not binding, though in point.
Order affirmed; motion denied.