Duke v. Brown Hotel Co.
| Decision Date | 26 May 1972 |
| Citation | 481 S.W.2d 289 |
| Parties | Loma DUKE, Appellant, v. BROWN HOTEL COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Floyd M. Lampert, Hollis, N.Y., for appellant.
Charles F. Wood, Louisville, for appellee.
The plaintiff, Loma Duke, appeals from a summary judgment which dismissed her action for personal injuries against the defendant, Brown Hotel Company. The decisive issue in the case is whether the plaintiff should be considered an employee of the defendant at the time of her injuries and therefore confined to the remedy of a claim for workmen's compensation benefits or considered an independent contractor and thus entitled to sue her employer at common law and recover damages if the defendant was negligent and its negligence was a legal cause of the harm. The circuit court decided that in the instance presented the contract of employment, which was an express written contract, impelled the conclusion that plaintiff had bargained away her right to sue at common law in return for a right to be compensated in accordance with the Workmen's Compensation Act for disability caused by work-connected injuries whether caused by the employer's negligence or not. We affirm the circuit court.
Loma Duke, an entertainer, was a member of the American Guild of Variety Artists which is a national union representing many artists and entertainers. We shall hereinafter refer to this union as AGVA. The defendant operated a hotel and undertook to provide entertainment for its patrons. This involved the booking of various types of acts or routines, usually in the form of music or dancing, or both. All entertainers of the type employed by defendant belong to AGVA.
The defendant entered into a written contract with AGVA that it would employ only members of that union. The plaintiff entered into a written contract with the defendant on the union's standard form. This contract provided that the plaintiff accepted an engagement to perform her act under 'the direction, supervision and control' of the defendant. Shortly before this time she had entered into another contract with the Shamrock Hilton Hotel wherein it was provided that she was to be considered an independent contractor and retained 'exclusive control over the means, method and details of fulfilling the obligations' undertaken. Both of these agreements resulted from collective bargaining on plaintiff's behalf by her union with the employer. It is clear that the differences in legal consequences between the concerned relationships were clearly understood as is evidenced by the contractual recitations.
In the agreement between the plaintiff and the defendant it was provided that plaintiff should be considered an employee and not an independent contractor, and the responsibility for the payment of all taxes and contributions under the Workmen's Compensation Law was imposed upon the defendant.
Plaintiff employed others as a part of her act which was called 'An Hawaiian Review.' On the first night of her engagement at the defendant's hotel, during an intermission, a cocoanut fire pot, which was being used to light the dressing area was toppled and the plaintiff's costume, a grass skirt, was ignited causing her to suffer burns over her body. She alleged in her complaint that the fire pot was toppled over through the negligence of one of the defendant's employees.
Plaintiff argues that since she was to be paid $750 for the entire engagement of six days and was to furnish the entire review for that amount, and since the review consisted of a troupe of five performers whom she selected, employed, and in all respects controlled, it was apparent that despite the express provisions of the contract of employment she was an independent contractor and not an employee.
Several abstract statements are repeated in the case law that appear dispositive unless considered in the context in which they are stated. It has been said that in a contract of hire the name adopted by the parties to describe their relationship is ordinarily of very little importance as against the factual rights and duties they assume. This type of judicial pronouncement is usually found where the factual context consists of a mere incidental recitation. The instant contract goes further. In the first place, it gives the right of direction, supervision and control of the act to the employer. In the second place, it specifically imposes upon the employer the responsibility for the payment of all taxes and contributions under the Workmen's Compensation Law. It is significant that this agreement studiously goes beyond a mere recitation of the relationship. Additionally, it is relevant that the legal consequences flowing from the status of independent contractor or employee were known and bargained for between the parties; this is confirmed by the contract negotiated shortly before the one with which we deal wherein not only the status of independent contractor is recited but the additional...
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Travelers Indem. Co. v. Reker
...and unprovoked physical aggression, the exclusive liability provisions of the act cannot be waived."). See also Duke v. Brown Hotel Co., Ky., 481 S.W.2d 289, 292 (1972); Mahan v. Litton, Ky., 321 S.W.2d 243, 245 (1959); Commonwealth, Dept. of Hwys. v. Meyers, Ky., 307 S.W.2d 179, 181 (1957)......
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M.J. Daly Co. v. Varney, 84-SC-523-DG
...Compensation Act. In the past this Court has broadly construed the term "employer" to provide coverage within the Act. Duke v. Brown Hotel Co., Ky., 481 S.W.2d 289 (1972). Notwithstanding, before there is an employer/employee relationship, there must be a contract of hire between the employ......