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Russell v. Torch Club

Decided: May 15, 1953.

GLORIA RUSSELL, PETITIONER-APPELLEE,
v.
THE TORCH CLUB, A CORPORATION, RESPONDENT-APPELLANT



On workmen's compensation appeal.

Drewen, J.c.c.

Drewen

There was an award of compensation in the bureau and respondent appeals. The one question presented here is whether petitioner's status at the time of the injury was that of an employee or an independent contractor.

Petitioner was an entertainer in the art of song. She was engaged by respondent to perform at a place of public resort owned and conducted by it in Union City and known, in the parlance of our time, as a night club. The engagement was in the form of a written contract, apparently of the sort generally used for the purpose. In it petitioner is called the "artist." She is to "present her act as a principal, consisting

of one person, four days weekly, Continental shows daily." She is to receive "Fifty dollars weekly, payable immediately preceding the first performance on the concluding night of each weeks engagement," less 10% commission to the booking agent. Had the writing been permitted exclusively to dominate and control performance of its terms, it is altogether likely that petitioner would have to be considered an independent contractor. But it is plain from the proofs that the contract did not control. Petitioner's freedom for the performance of the service for which she had engaged herself was so drastically and extensively subordinated to the particular wish and purpose of respondent that her real status was manifestly that of an employee and no other.

The engagement began on the night of November 1, 1951. Two nights later the accident and injury occurred. While petitioner was in the dressing room, following an appearance on the stage, her dress caught fire from the open flame of a gas heater and she was severely burned.

Included in petitioner's burden of proof was that of establishing the relation of employer and employee, as against the defense that she was an independent contractor. The status of independent contractor has been clearly defined by our courts:

"An independent contractor is * * * one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work." Reisman v. Public Service Corporation , 82 N.J.L. 464, 466 (E. & A. 1911); Errickson v. F.W. Schwiers, Jr., Co. , 108 N.J.L. 481, 483 (E. & A. 1932).

A case in point, having to do with an entertainment contract, is Radio City Music Hall Corp. v. United States , 50 F. Supp. 329 (D.C.S.D.N.Y.), affirmed 135 F.2d 715 (C.C.A. 2, 1943). There the performers were held to be independent contractors, and the trial court's reason for the holding in the first instance is indicated in the following passage from its opinion:

"Even the monologue or dialogue was that of the artist and was not supplemented by the plaintiff, but was subject to deletion if it offended good taste, or was too ...


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