Certiorari to review an award of the Industrial Accident Commission in favor of Ida M. Bracket and against Fred S. Moody. Briefly, the facts are that petitioner, Fred S. Moody, while suffering from аn infection, which caused a high fever and delirium, was ordered sent to the hospital by his physician, who requested the hospital to assign petitioner a room, to prepаre the operating room, and to call in a special nurse. In response to the doctor’s request, the respondent Ida M. Bracket, a professional nurse, was summоned by the hospital management to take charge of the case, her name being taken from a waiting-list of nurses kept by the hospital. There was no agreement or understanding as to the nature of her duties or the right to control her services. Her hours of employment and the wages she was to receive were covered by an opеrating schedule maintained between the hospital and the nurses’ association. The operation was performed, and petitioner’s delirium continued for a periоd of a week or ten days thereafter. After attending the patient for a week, the respondent complained of a soreness in her thumb, and was immediately retired from thе case. The soreness developed into an infection, and she remained at the hospital as a patient for over two months. She filed a claim with the Industrial Accident Commission for compensation for injuries arising out of and in the course of her employment by petitioner, and was granted an award for a temporary total disability from Nоvember 8, 1926, and continuing indefinitely. Petitioner seeks to have the award annulled, contending that the relationship of master and servant does not exist in this ease; that the disputablе presumption of employment based on personal service, embodied in section 8 (b) of the Workmen’s Compensation Act, has no application to the faсts here, and that the status of the respondent nurse at the time she became inoculated with the infection was not that of an employee, but that of an independent contractor, exercising an independent calling, and retaining the entire control over the method and manner of doing her work, in accordance with her learning, skill, and trаining.
*670 The sole question to be considered, therefore, in this proceeding is whether a graduate nurse, attending a patient in her professional capacity, becоmes an “employee” of the patient, within the meaning of the Workmen’s Compensation Act, or is to be considered an “independent contractor.” The Commission cоntends that, having found that the respondent was performing service for petitioner at the time she became infected, it was presumed that her status was that of an employee; that, under section 19 (d) of the Workmen’s Compensation Act, the burden of showing that she was an independent contractor was upon petitioner, and that that burden of рroof was never discharged, and, therefore, the presumption was never overcome.
Section 8 (b) of the Compensation Act, above referred to, providеs that “Any person rendering service for another, other than as an independent contractor, or as expressly excluded herein, is presumd to be an employee within the meaning of this act.” Many definitions of an “independent contractor” have been made, but they are not essentially different.
(Franklin Coal Co.
v.
Industrial Com.,
We have found but onе or two cases in the reports of the various states involving the status of a graduate nurse. “Ordinarily a trained nurse, performing her usual duties with the skill which is the result of training in that profession, does not come within the definition of a servant, but rather is one who renders personal services to an employer in pursuit of an independent calling.”
(Parkes
v.
Seasongood,
152 Fed 583.) The professiоns of doctor and nurse are so closely allied that decisions applicable to one would appear to apply equally well to the other. In the greаt majority of instances the inference, that it is the implied intention of the parties to contracts for the services of a medical practitioner that he is not to bе under the employer’s control with respect to the details of his work, is corroborated by the consideration that the employer is a person who does not possess the technical skill which would qualify him to exercise such control, and that it would, for that reason, be highly inexpedient for him to attempt to exercise it. (19 A. L. R. 1186.) “There is no more distinct calling than that of the doctor, and none in which the employee is more distinctly free from the control or discretion of his employer.”
(Pearl
v.
West End Street R. Co.,
It is admitted here that the respondent nurse would have refused to obey orders given her by the petitioner with reference tо the methods of treating him even had his condition permitted him to give such directions. She would take orders from the patient with respect to minor services looking to his comfort, but that measure of control falls far short of that complete and authoritative control which is the decisive test of the relationship of master and servant. In acсordance with that test it would appear that the right to control and direct the work of the respondent nurse was not reserved to the petitioner, and that she must be deеmed to be an independent contractor within the meaning of the Workmen’s Compensation Act.
The respondent contends that to hold contrary to its findings in this instance would be, in еffect, to read into section 8 (a) of the Workmen’s Compensation Act an exclusion of professional workmen, when such was not the intention of the legislature. We cаnnot agree with this contention. The mere fact that the employee is one who carries on a separate and independent employment does not makе him an independent contractor, although it is a circumstance to be taken into consideration as tending to show that he is an independent contractor. (39 C. J. 1319.) When, in additiоn to this circumstance, there is lacking, as in the present instance, the essential element that the master or employer shall have control and direction, not only of the employment to which the contract relates, but of all its details
(Pilger
v.
City of Paris Dry Goods Co.,
The award is annulled.
Curtis, J., Shenk, J., Preston, J., Seawell, J., Richards, J., and Langdon, J., concurred.
Hearing in Bank denied.
All the Justices present concurred.