This proceeding in certiorari was instituted by petitioner Jack Schaller to secure the annulment of an award made against him by the Industrial Accident Com *48 mission for the death of Sue Alric Marrion, an aerialist who was fatally injured on May 7, 1936, during the performance of her act in a Cаnadian showhouse, when one of the ropes gave way at a height of eighty feet. The question is whether decedent was an independent contractor at the time of the accident, or whether she was an employee of petitioner.
For a number of years, so the record shows, petitioner, operating under the name of Jack Schaller Attractions, has conducted the business of theatrical or free attraction contractor. He maintains a рlace in Los Angeles furnished with acrobatic and aerial equipment which performers are permitted to use without charge in order to build up or rehearse an act, or maintain physical fitness. Petitioner does not supervise or direct the creation of an act, but he secures bookings, or contracts for the performance of certain acts which are ready for the stage.
On December 29, 1935, petitioner entered into a written contract with the manager of the Conklin and Garrett All Canadian Shows. This contract provided that in consideration of $225 a week to be paid to petitioner or his representative, petitioner would furnish to the Conklin Shows in Canada, for a period of nine weeks, with option for the remainder of the season, an act known as the 4 Queens of the Air, which act would be performed twice daily at a time designated by petitioner ; that the troupe would put up and take down its own rigging; that after the act jоined the show, transportation would be furnished; that the manager of the act would be either Eddie Kunze or Milo L. Jones; that the manager would act as a substitute performer in the absence of any member of the troupe; that petitioner would hold the show “harmless1 on account of any accident or injury occurring to . . . (petitioner) or any of his employees, during' any and/or all of said performances while engaged under the employment as provided in this contract”; and thаt where conditions were not suitable for a standard performance without serious injury or loss of life to petitioner’s “performers and employees”, there should be no reduction in the salary or monies due from the show.
At the time this agreеment was executed, petitioner believed that he would be able to secure the services of either the troupe of aerialists managed by Kunze, or that managed by Jones. Later he found that neither the Kunze nor the Jones *49 troupе would go to Canada. Meanwhile an aerial specialty act had been originated and organized by four women aerialists who had contacted each other while rehearsing at petitioner’s place. Sue Alric Marrion was one of these four women. The aerialists called their act the “Four Aerial Queens”, and they selectéd the husband of one of them to act as rigging man and substitute performer for the troupe. Petitioner told the troupe of the Canadian opening and they signified their willingness to fill the engagement. The Conklin Shows agreed orally to accept them as a substitute for the Kunze or Jones troupe under terms substantially as set forth in the written contract with petitioner. Petitioner thereupоn made a separate oral agreement with each of the five members of the troupe; he did not contract with the troupe as a unit. His agreement with Sue Alric Marrion, similar to his agreement with the other troupers, was that she would pеrform her specialty act for twenty weeks for the sum of $600, performing to the best of her ability. Petitioner furnished a truck containing two bunks and equipment, and oil and gas sufficient to transport the troupe to the point where they joined the show. By mutual agreement it was arranged that payment of compensation would be handled in the following manner: The Conklin Shows had contracted to pay petitioner $225 a week for the act. The rigging man was selected to receive and disburse this sum аs follows: $42.50 to petitioner for rent of equipment; $22.50 to petitioner as a 10 per cent commission; $30 to each of the four women aerialists; $40 retained by the rigging man.
Petitioner testified that he did not consider the members of the troupe as his еmployees and that he carried no compensation insurance.; that the performers were independent contractors; and that he acted only as their booldng agent. He stated that he did not direct or supervise the formаtion of their act in any manner; that he exercised no control whatsoever over any detail of its performance; that Sue Alric Marrion, and each other trouper, performed her specialty as she saw fit, directed the instаllation of equipment for her use, and directed the manner in which the other performers were to assist her; that no member of the troupe controlled or directed any other member; that each performer made her own deсision as to the duration of her act, the number of loops to be made, the kind, the height, and the tricks to be *50 exhibited. Petitioner testified that the rigging man was not managing the act as his agent; that he was merely chosen by the troupe to perform certain duties for them, including the disbursement of compensation.
Petitioner stated that intoxication would be ground for breaking his contract with a performer, but otherwise he was without power to discharge where a performance was sаtisfactory according to the performer’s own judgment. Petitioner gave as his reason for making a separate oral agreement with each performer, rather than a contract with the troupe as a unit, his desire to retain сontrol over any change of personnel in the troupe; if one performer left, he could substitute another performer of his own choice. He stated that the troupe was bound to perform at the Conklin show-houses during the designatеd period, giving a specified number of daily performances at the times indicated by the show, and he could not have changed the troupe to other shows except by mutual agreement. Petitioner further testified that he was obligated to pay the aerialists according to his guarantee of $600 ($30 a week for 20 weeks), and that regardless of what might happen to the Conklin shows, bankruptcy, for example, he would still have to pay.
The testimony given by other witnesses at the hearing, including members of the troupe, was of like import to that of petitioner. From this evidence the commission concluded that Sue Alric Marrion was petitioner’s employee, and that her death resulted from injury sustained in the course of that emрloyment.
Where findings made by the commission are supported by substantial evidence, or by inferences which may fairly be drawn from the evidence, even though,the' evidence be susceptible of opposing inferences, those'findings will not be disturbed by an appellate tribunal.
(Schramm
v.
Industrial Acc. Com.,
15 Cal. App. (2d) 475, 481 [
In this case the finding of the commission that Sue Alric Marrion was an emрloyee of petitioner, and not an independent contractor, must be sustained. Although petitioner repeatedly testified that he hired Sue Alric Marrion as an independent contractor, this was merely a statement of petitioner’s own conclusion from the facts. Ostensibly certain features of the employment indicated a relationship of independent contractor, but these factors only served to create a conflict of evidence and opposing inferences to be drawn therefrom, which conflict the commission chose to resolve adversely to petitioner. If this court had been sitting as the trier of the facts, it is possible that an opposite conclusion might have beеn reached. On review, however, it cannot be said that the evidence established the relation of independent contractor as a matter of law. The-conflicting evidence was clearly susceptible of two oppоsing inferences. The inference accepted by the commission was reasonable and amply supported, and therefore the commission’s finding will not be disturbed.
*52
We may add that the evidence in this record has been reviewed in the light of vаrious tests used in determining whether a relationship is one of employee or of independent contractor, such as the test of ‘1 complete and unqualified control”, of ‘‘payment of wages”, or of ‘‘right of discharge”. While these tests аre recognized as helpful, yet no special test, or fact, or circumstance has been found to give a conclusive answer to the question, and in the last analysis each case must turn upon its own peculiar facts and circumstаnces.
(Washko
v.
Stewart,
20 Cal. App. (2d) 347, 351 [
The commission found that there was left surviving decedent, John Barr, her five-year-old son, a total dependent, and it awarded $4,446 for his benefit. Petitioner questions this finding of total dependency. Petitioner refers to evidence that since birth the boy had been cared for by his grandfather, who represents him herein as guardian ad litem and trustee, and petitioner complains that no proof wаs offered to show that the boy’s father, who was legally liable for his support, was unable to provide adequately for him. The commission contends that the minor was entitled to the presumption of total dependency under section 14a (2) оf the act, or that in any event the facts showed a total dependency under section 14 (b).
We are of the view that there is to be found, in the conflicting evidence in the record, sufficient support for the commission’s finding of total depеndency. In support of the finding there was evidence that decedent had been divorced *53 from the child’s father; that the father had never contributed to the child’s support; that in fact his whereabouts were unknown, and efforts to locate him had proved fruitless. There was further evidence that although decedent and the child had been on relief, and that when decedent was out of work they stayed with her parents, yet when decedent did have work she contributed to the child’s support, and the child was dependent upon her.
The award is affirmed.
Shenk, J., Waste, C. J., Curtis, J., and Langdon, J., concurred.