195 Wis. 468 | Wis. | 1928
The facts are not in dispute. The defendant Fern Rich is the widow of Harry Rich, who accidentally met his death while giving an exhibition termed the “slide for life.” Deceased was engaged by the plaintiffs Miller & Rose to give his exhibition at the State Fair Amusement Park at Milwaukee, July 1, 1925. Rich was a professional entertainer, going from place to place. The contract was made by correspondence, in writing. Rich was to give his act three times a day for one week, for $375. He» was to bear his own expense, perform his act in his own way, from apparatus furnished by himself, and without any direction or control by Miller & Rose. Rich furnished his own advertising material. He came to the park as per contract, and prepared his apparatus with the aid of some workmen furnished by Miller & Rose, but who were supervised by Rich. He was killed on his first slide. Such are the outstanding facts.
The appellants contend that Harry Rich was an employee, rendering service under a contract of hire to Miller & Rose.
The respondents contend that Harry Rich was an independent contractor and not an employee. The facts being undisputed, this presents a matter of law.
The compensation act was passed to care for personal injuries resulting from industrial accidents, — such accidents as grew out of the relation of master and servant under the common law. Hence, we have the significant expressions in defining employer (master) and employee (servant) : “Every person . . . who has any person in service under any contract of hire” is an employer. Sub. (2), sec. 102.04. “Every person in the service of another under any contract of hire” is an employee. Sub. (4), sec. 102.07, Stats. (The emphasis is ours.) The act was framed by a legislative interim committee and its able counsel, which reported a printed bill with ample explanations of each section. This printed report they denominatéd “Workmen’s Compensation Bill and Report.” All through the report the idea is dominant that the compensation act was to cover “laborers,” “workmen,” “employees,” “servants,” “wages.” The bill became'a law, substantially as reported. Ch. 50, Laws of 1911. So we may safely say that, except as amended, the act covered no one except workers for hire, in the common acceptation of such expressions as were used.
Bearing this in mind, it should not be very difficult to differentiate between employees under the act and independent contractors. The employee generally is subject to direction and control by the employer as to his work and the
In the instant case Rich was a performer of a dangerous act intended to attract and thrill a crowd. He traveled from place to place to perform his act, as he could secure contracts or “bookings” in advance. His contract called for a lump-sum payment. His act was not subject to direction or control of Miller & Rose. He was his own master and the servant of no one. He was an independent performer, in business for himself. He was no more an employee than would be Paderewski, Chaliapin, or Madame Schumann-Heink. None of the artists of this class would suspect that he was under the compensation act if he should be injured in the performance of his exhibition. This does not mean that there are no artists or performers under compensation. Many such are under contracts of hire to render service under the control and direction of an employer.
We have been favored with able oral argument and exhaustive briefs on both sides, but we do not regard the case as doubtful. Cases cited to our attention, closely in point, are: Ronning v. Industrial Comm. 185 Wis. 384, 200 N. W. 652; Madix v. Hochgreve B. Co. 154 Wis. 448, 143 N. W. 189; Hasenfus v. Industrial Comm. 184 Wis. 281, 199 N. W. 158; Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452; Leigh Aitchison, Inc. v. Industrial Comm. 188 Wis. 218, 205 N. W. 806.
We are not unmindful of the rule that the compensation act is to be liberally construed to carry out its humane purposes; but to include within its provisions actors and performers of the class suggested would be subversive of the intent and purpose of the law.
By the Court. — The judgment of the circuit court is affirmed. ^